United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.L., Appellant

and

DEPARTMENT OF THE NAVY, NAVY 

FACILITIES ENGINEERING COMMAND, 

Colts Neck, NJ, Employer

__________________________________________

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Docket No. 19-1660

Issued: January 26, 2021

Appearances: Case Submitted on the Record

Thomas R. Uliase, 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 August 1, 2019 appellant, through counsel, filed a timely appeal from a February 13, 

2019 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 the case.3

 

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. 

3 The Board notes that following the February 13, 2019 decision, OWCP received additional evidence. 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

ISSUE

The issue is whether appellant has met his burden of proof to establish greater than 15

percent permanent impairment of his right lower extremity, for which he previously received

schedule award compensation.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances of the case 

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

are as follows.

On July 28, 2003 appellant, then a 48-year-old welder/boiler plant operator, filed a 

traumatic injury claim (Form CA-1), alleging that he injured his right knee on July 23, 2003 when 

kneeling on the floor of a box car while in the performance of duty. OWCP accepted the claim for 

right knee sprain, effusion of joint of the right lower leg, chondromalacia of right patella, 

aggravation of osteoarthritis of right leg, and tear of right medial cartilage or meniscus. It paid 

appellant intermittent wage-loss compensation on the supplemental rolls as of September 18, 2003,

and on the periodic rolls as of May 16, 2004. 

On May 6, 2004 Dr. Marc S. Zimmerman, a Board-certified orthopedic surgeon, performed 

arthroscopic and chondroplastic surgery. 

On June 3, 2011 appellant filed a schedule award claim (Form CA-7) and submitted a 

January 20, 2011 report in which Dr. David Weiss, an attending osteopath Board-certified in 

orthopedic surgery, advised that appellant had reached maximum medical improvement (MMI). 

Dr. Weiss noted his review of medical records and described right knee examination findings. He

advised that, in accordance with the sixth edition of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (A.M.A., Guides),5 under Table 16-3, Knee Regional 

Grid, appellant had a Class 2 right knee impairment, for grade IV chondromalacia, with a default 

rating of 20 percent. Dr. Weiss found a grade modifier for functional history (GMFH) of 3, a grade 

modifier for physical examination (GMPE) of 1, and a grade modifier for clinical studies (GMCS) 

of 4. He applied the net adjustment formula and concluded that appellant had 24 percent 

permanent impairment of the right lower extremity. 

In a July 20, 2011 report, Dr. Craig Uejo, Board-certified in preventive and occupational 

medicine serving as a district medical adviser (DMA) disagreed with Dr. Weiss’ impairment 

rating. He advised that appellant’s rating should be based on a diagnosis of patellofemoral arthritis, 

instead of chondromalacia. Dr. Uejo found that, using the findings of a November 17, 2009 right 

knee magnetic resonance imaging (MRI) scan, under Table 16-3 for this diagnosis, appellant had 

a Class 1 rating, which had a default score of three percent. 

 

4 Docket No. 12-1209 (issued December 4, 2012).

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

By decision dated July 21, 2011, OWCP granted appellant a schedule award for three 

percent permanent impairment of the right lower extremity, for a total of 8.64 weeks, to run from 

January 20 to March 21, 2011.

On July 27, 2011 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review. He submitted additional evidence including a

November 8, 2011 x-ray that demonstrated moderate patellofemoral arthritis with no significant 

joint space narrowing within the medial or lateral compartments and minimal chondrocalcinosis 

within the medial compartment. No fracture, dislocation, or large suprapatellar joint effusion was 

identified. 

In an updated November 15, 2011 report, Dr. Weiss provided additional explanation and

advised that appellant’s impairment right lower extremity rating remained at 24 percent.

By decision dated January 18, 2012, an OWCP hearing representative affirmed the July 21, 

2011 schedule award decision. He found the evidence submitted subsequent to the hearing was 

repetitive in nature and that Dr. Uejo’s report constituted the weight of the medical evidence. 

On May 9, 2012 appellant, through counsel, filed an appeal with the Board. By decision 

dated December 4, 2012, the Board found the case not in posture for decision. The Board noted 

that, after appellant submitted additional evidence, OWCP failed to forward this to its DMA for 

review. The Board remanded the case to OWCP to forward the medical evidence submitted to an 

appropriate DMA for an opinion on the degree of appellant’s right lower extremity impairment, to 

be followed by a merit decision regarding whether appellant was entitled to an increased schedule 

award.6

Following the Board’s remand, in a February 17, 2013 report, Dr. Arnold T. Berman, a 

Board-certified orthopedic surgeon serving as DMA, agreed with Dr. Uejo that appellant had three 

percent right lower extremity permanent impairment. By decision dated February 20, 2013,

OWCP found that appellant was not entitled to an increased schedule award.

On February 25, 2013 appellant, through counsel, requested a hearing with a representative 

of OWCP’s Branch of Hearings and Review. By decision dated April 8, 2013, a hearing 

representative noted that, after preliminary review, the case was not in posture for decision. She 

found that the evidence of record required further development regarding appellant’s accepted 

conditions. The hearing representative remanded the case for OWCP to schedule a second opinion 

impairment evaluation.7

OWCP referred appellant to Dr. Jonathan Black, a Board-certified orthopedic surgeon, for 

a second opinion evaluation. In a May 14, 2013 report, Dr. Black noted his review of the record, 

including the statement of accepted facts (SOAF), and provided examination findings. He advised 

that under Table 16-3 of the A.M.A., Guides, appellant had three percent right lower extremity

permanent impairment for a diagnosis of patellofemoral arthritis. In a June 4, 2013 report, a DMA 

 

6 Supra note 4.

7

In 2013 appellant relocated from Pennsylvania to Florida.
4

agreed with Dr. Black’s conclusion that appellant had three percent right lower extremity

permanent impairment.8

By decision dated June 6, 2013, OWCP found that appellant was not entitled to a right 

lower extremity schedule award greater than the three percent previously awarded. 

On June 17, 2013 counsel requested a hearing before a representative of OWCP’s Branch 

of Hearings and Review. By decision dated August 6, 2013, a hearing representative noted that, 

after preliminary review, the case was not in posture for decision. She remanded the case for 

OWCP to ask its DMA to provide full calculations and explanation of the rating found, to be 

followed by a de novo decision. 

In an August 8, 2013 report, Dr. James W. Dyer, a Board-certified orthopedic surgeon 

serving as a DMA, reviewed Dr. Black’s report. He provided calculations under Table 16-3 of the 

A.M.A., Guides for a diagnosis of patellofemoral arthritis with full-thickness deficit, appellant had 

three percent right lower extremity permanent impairment. 

By decision dated August 12, 2013, OWCP found that appellant was not entitled to a right 

lower extremity schedule award greater than the three percent previously awarded. 

On August 19, 2013 counsel requested a hearing before a representative of OWCP’s 

Branch of Hearings and Review that was held on January 16, 2014. At the conclusion of the 

hearing, the hearing representative issued a summary decision, contained in the hearing transcript. 

She found that a conflict in medical evidence had been created between the opinions of Dr. Weiss 

and Dr. Black and remanded the case for OWCP to schedule an impartial evaluation regarding the 

degree of appellant’s permanent impairment of his right lower extremity.9

On March 4, 2014 OWCP referred appellant to Dr. Robert B. McShane, a Board-certified 

orthopedic surgeon, for an impartial medical evaluation.10 In a March 24, 2014 report,

Dr. McShane noted the history of injury and his review of the medical record, including diagnostic 

studies. He noted that an August 14, 2003 right knee MRI scan revealed degenerative changes at 

the patellofemoral compartment, which were seen again during the 2004 arthroscopic surgery and 

MRI scans dated November 27, 2004 and January 24, 2007.11 Dr. McShane described lower 

extremity physical examination findings and indicated that appellant’s current complaints were the 

sequelae of significant preexisting degenerative process. He advised that he concurred with the 

opinion of Dr. Black rather than Dr. Weiss. Dr. McShane referenced Table 16-3 of the A.M.A., 

Guides, and found that appellant had grade 1 full-thickness patellofemoral arthritis. He applied 

 

8 The DMA’s signature is illegible. 

9

In correspondence dated January 31, 2014, the hearing representative referenced a new report from Dr. Becan and 

indicated that her summary decision began on page 22, line 22 of the January 16, 2014 hearing transcript. However, 

a review of the hearing transcript indicates that no additional exhibits were received and that the summary decision 

begins on page 14, line 22 of the transcript. 

10 The record contains an ME023 form and bypass log. 

11 Copies of the May 6, 2004 operative report and MRI scans dated August 14, 2003, November 17, 2004, and 

January 24, 2007 are found in the case record. 
5

the net adjustment formula and concluded that appellant had three percent right lower extremity 

permanent impairment.

By decision April 8, 2014, OWCP found that appellant was not entitled to a right lower 

extremity schedule award greater than the three percent previously awarded. 

On April 14, 2014 counsel requested a hearing before a representative of OWCP’s Branch 

of Hearings and Review.

June 14, 2014 x-rays of appellant’s right knee demonstrated medial compartment and 

patellofemoral compartment osteoarthritis with joint space narrowing. 

Following an August 14, 2014 hearing, counsel submitted a September 8, 2014 report in 

which Dr. Weiss noted that he had reviewed June 16, 2014 x-rays which showed bone-on-bone 

changes.12 He reiterated that, under Table 16-3 of the A.M.A., Guides, with grade modifiers, 

appellant had 24 percent permanent impairment of the right lower extremity. Dr. Weiss did not 

reexamine appellant.

By decision dated October 27, 2014, the hearing representative found the case not in 

posture for decision. He noted that Drs. Weiss, Black, and McShane all calculated impairment 

using the same diagnosed condition, patellofemoral arthritis, but whereas Drs. Black and McShane 

identified a full-thickness articular cartilage defect with a default range of 1 to 5 percent, Dr. Weiss 

determined that no cartilage interval remained, yielding a default range of 16 to 24 percent. On 

remand OWCP was to secure the actual x-ray films from November 8, 2011 and June 16, 2014, 

and return the record to Dr. McShane for further review, to be followed by a de novo decision. 

On December 2, 2014 OWCP forwarded Dr. Weiss’ September 8, 2014 report and a disc 

containing the November 8, 2011 and June 16, 2014 x-rays to Dr. McShane. In a December 11, 

2014 report, Dr. McShane advised that, after review of the 2011 and 2014 x-rays, appellant had a 

minimal remaining cartilage interval at the patellofemoral joint and only mild degenerative 

changes in the weight-bearing portion.13 In a February 27, 2015 report, he again advised that, 

under Table 16-3 of the A.M.A., Guides, appellant had patellofemoral arthritis with a fullthickness articular cartilage defect for three percent impairment. 

On March 10, 2015 Dr. H.P. Hogshead, Board-certified in orthopedic surgery serving as a 

DMA, agreed with Dr. McShane’s analysis under Table 16-3 of the A.M.A., Guides and concluded 

that appellant had three percent right lower extremity permanent impairment. 

By decision March 12, 2015, OWCP found that appellant was not entitled to a right lower 

extremity schedule award greater than the three percent previously awarded. 

On March 17, 2015 counsel requested a hearing before a representative of OWCP’s Branch 

of Hearings and Review, which was held on September 24, 2015. 

 

12 Dr. Zimmerman had continued to treat appellant following the May 2004 arthroscopic surgery. Serial right knee 

x-rays were also done. Dr. Zimmerman did not provide an impairment rating. 

13 Dr. McShane also reviewed x-rays of the left knee. 
6

In a September 24, 2015 report, Dr. Weiss noted that he had reviewed Dr. McShane’s 

March 24, 2014 and February 27, 2015 reports. He maintained that it was unclear whether

Dr. McShane had actually measured appellant’s remaining cartilage interval and that it was unclear 

what diagnostic study he used in his analysis. Dr. Weiss indicated that he had used a November 8, 

2011 x-ray which revealed bone-on-bone arthritis with no cartilage and this substantiated a class 

2 impairment. He reiterated that, after net adjustment, appellant had 24 percent permanent 

impairment of the right lower extremity.

In a November 1, 2015 report, Dr. Lisa Marie Sheppard, a Board-certified radiologist, 

noted her review of the June 16, 2014 right knee x-ray. She indicated that standing erect images 

were obtained and measurements taken of the joint spaces in the anteroposterior (AP) and lateral 

projections of the right knee, with a lateral joint space superior to inferior measurement of 7.8 

millimeters (mm), and a medial joint space of 7.9 mm. Dr. Sheppard continued that in the lateral 

projection on the right side, the patellofemoral joint space was completely obliterated and the 

measurement was zero.

14

By decision dated December 9, 2015, the hearing representative remanded the case to 

OWCP for further medical development. It was to obtain clarification from Dr. McShane with

regard to cartilage measurements. 

In a January 6, 2016 report, Dr. McShane indicated that his opinion that appellant had three 

percent permanent impairment of the right lower extremity was unchanged. 

By decision dated February 8, 2016, OWCP found that appellant was not entitled to a right 

lower extremity schedule award greater than the three percent previously awarded. 

On February 17, 2016 counsel requested a hearing before a representative of OWCP’s 

Branch of Hearings and Review. Following a May 26, 2016 hearing, by decision dated August 5, 

2016, an OWCP hearing representative found that a conflict in medical opinion remained and 

remanded the case to OWCP for further development of the medical evidence. The hearing 

representative found that Dr. McShane’s report did not fully evaluate all of appellant’s right knee 

conditions, and he did not present his permanent impairment rating in accordance with the A.M.A, 

Guides, which required citation to the applicable tables, and medical rationale in support of his

calculations. 

On March 15, 2017 OWCP referred appellant to Dr. Robert W. Elkins, a Board-certified 

orthopedic surgeon, for an impartial medical evaluation.15 In an April 26, 2017 report, Dr. Elkins 

noted his review of the medical record including diagnostic studies, the SOAF, and appellant’s 

complaints of right knee pain. He described right knee examination findings and advised that in 

accordance with Table 16-3 of the A.M.A., Guides, for a diagnosis of patellofemoral arthritis, 

 

14 Dr. Sheppard also provided measurements for appellant’s left knee. 

15 An impartial evaluation was initially scheduled with Dr. Phuc Vo. A series of memoranda of telephone calls

(Form CA-110) indicated that Dr. Vo required prepayment for the examination. It was, therefore, cancelled. An 

impartial medical evaluation was next scheduled with Dr. James D. Glenn. A Form CA-110 dated February 27, 2017 

indicated that Dr. Glenn’s office manager cancelled the appointment due to the size of the case record. Both Dr. Vo 

and Dr. Glenn are Board-certified orthopedic surgeons. 
7

appellant had a class 2 impairment of 15 percent. Dr. Elkins indicated that there were no grade 

modifiers. 

In a June 7, 2017 report, Dr. James W. Butler, Board-certified in occupational medicine 

serving as DMA, noted his review of the medical record including Dr. Elkins’ report. He advised 

that Dr. Elkins did not correctly apply the criteria and tables of the sixth edition of the A.M.A., 

Guides. Dr. Butler specifically noted that Dr. Elkins based his impairment rating on a 1 mm 

cartilage interval whereas Dr. Sheppard advised that appellant had zero cartilage interval which 

would place appellant in class 2, level 2, for 20 percent permanent impairment. He also noted that

Dr. Elkins did not apply grade modifiers and did not measure atrophy. Dr. Butler also did not 

indicate a date of MMI.

On June19, 2017 OWCP wrote Dr. Elkins, asking for clarification based on the DMA’s 

report, which was attached. In a July 12, 2017 addendum report, Dr. Elkins advised that he did 

not ignore appellant’s functional history, just questioned it because his functional complaints 

outweighed his objective findings. He noted that appellant stated that he could only walk 10 

minutes which would preclude him from most activities, and that his severe complaints of pain did 

not jive with his objective findings on x-ray, which indicated severe patellar chondromalacia, but 

the rest of his joint measured approximately eight mm of space in the medial and lateral 

compartment. Dr. Elkins noted that other examiners disagreed on the degree of appellant’s 

impairment, and that he classified appellant’s impairment based on weight bearing joint 

measurements and patellar to femoral spacing. He advised that, while appellant’s weight bearing 

joint spaces were decreased, they were not class 4. Dr. Elkins indicated that his evaluation was 

based on objective findings, as any rating should be, noting that visual atrophy could not be judged 

because of appellant’s obesity. He also opined that weakness was a subjective test with objective 

corroboration, and he could not determine if appellant’s weakness was totally physiological. 

Dr. Elkins wrote that, for this reason, he felt that data to be used for grade modifiers was inaccurate, 

and therefore the modifiers were not used. He continued that he reviewed his calculations using 

objective data only and, noting appellant’s lack of correlation between subjective complaints and 

objective findings and symptom magnification, no modifiers were used. Dr. Elkins reiterated his 

conclusion that, under Table 16-3 of the sixth edition of the A.M.A., Guides, for a diagnosis of 

patellofemoral arthritis, the average rating for 1 mm cartilage interval was 15 percent. Dr. Elkins 

concluded that his original calculation is accurate, based on the art of medicine as well as the 

science, and that MMI was reached on August 7, 2013.

By decision dated August 10, 2017, OWCP granted a schedule award for an additional 12 

percent permanent impairment of the right lower extremity, for a total of 34.56 weeks, to run from 

August 7, 2013 to April 5, 2014. 

On August 16, 2017 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review. Appellant was not present at the January 17, 2018 

hearing. Counsel asserted that, even though the DMA found that Dr. Elkins misapplied the 

A.M.A., Guides, he did not change his opinion in his supplemental report. Therefore, his report 

was not sufficient to carry the special weight of the medical evidence, and the case should be 

remanded for further development of appellant’s entitlement to an increased schedule award. 

Counsel further maintained that Dr. Elkins was improperly selected as an impartial medical 

specialist, noting that appellant had initially been scheduled for an appointment with Dr. Glenn,

but the appointment was cancelled with no justification provided. The record was held open for 

30 days.
8

In a January 12, 2018 report, Dr. Weiss noted that Dr. Sheppard had found complete 

obliteration of the right knee patellofemoral joint, which placed appellant in the “no cartilage 

interval” category. He advised that a GMCS was not appropriate because it had been used to place 

appellant in the appropriate class. Dr. Weiss found that appellant had a class 2 grade 4 permanent 

impairment of the right lower extremity of 20 percent. He applied the net adjustment formula, 

finding an adjustment of zero, and concluded that appellant’s total right lower extremity permanent 

impairment was 20 percent. 

By decision dated April 2, 2018, an OWCP hearing representative found that it had not

been established that Dr. Elkins had been improperly selected as an impartial medical specialist

Dr. Glenn had cancelled the appointment. She, however, set aside the August 10, 2017 decision. 

The hearing representative remanded the case for OWCP to obtain an additional opinion from its 

DMA as to whether Dr. Elkins correctly applied the criteria/tables of the A.M.A., Guides and 

whether further information was needed from him. 

In an April 28, 2018 report, Dr. Butler serving as DMA, noted his review of the reports of

Dr. Elkins and Dr. Weiss dated July 12, 2017 and January 12, 2018, respectively. The DMA noted 

that Dr. Elkins was the last person to actually examine appellant and determined that appellant’s 

functional history was not consistent with the examination findings and other history and, 

therefore, disregarded functional history as a grade modifier. As to a GMPE, Dr. Butler noted that

Dr. Elkins indicated that appellant was so obese, he could not properly examine him, and that he 

assigned a 1 mm cartilage interval, based on weight bearing joint measurements, which was criteria 

of the A.M.A., Guides. The DMA concluded that Dr. Elkins appropriately discounted the physical 

examination and functional history modifiers and correctly noted that the clinical studies modifier 

could not be used. Dr. Butler set the date of MMI as July 12, 2017, indicating this was the date of

Dr. Elkins’ evaluation.

By decision dated May 30, 2018, OWCP found that appellant was not entitled to a right 

lower extremity schedule award greater than the 15 percent previously awarded. 

On June 7, 2018 appellant, through counsel, requested a hearing before a representative of 

OWCP’s Branch of Hearings and Review. At the November 29, 2018 hearing, counsel asserted 

that the opinion of Dr. Butler, the DMA, contradicted himself, noting that he in his initial report 

found that Dr. Elkins misapplied the A.M.A., Guides, yet in his supplemental report found that he 

appropriately applied the A.M.A., Guides. 

Dr. Zimmerman, who had continued to follow appellant periodically submitted a 

January 17, 2019 treatment note in which he noted appellant’s complaint of right knee pain, 

particularly with increased activity. Right knee examination demonstrated no effusion, lack of 15 

degrees of full flexion and 10 degrees of extension, with some pain on McMurray’s test and 

positive patellar inhibition, but no click, no laxity, and a negative Lachman’s. He advised that 

right knee x-rays that day demonstrated marked narrowing of the lateral portion of the 

patellofemoral compartment and that the joint space was minimally narrowed medially.16 

Dr. Zimmerman did not provide an impairment evaluation. 

 

16 A copy of the x-ray report is found in the record.
9

By decision dated February 13, 2019, OWCP’s hearing representative affirmed the 

May 30, 2018 decision. She found that the DMA provided medical rationale to support his 

conclusion that appellant did not have greater right lower extremity impairment than the 15 percent 

previously awarded.

LEGAL PRECEDENT

The schedule award provision of FECA and its implementing regulations 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.17 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 to all claimants, good administrative practice necessitates the 

use of a single set of tables so that there may be uniform standards applicable to all claimants. 

Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.18 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).19

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 509.20 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).21

ANALYSIS

The Board finds this case is not in posture for decision because a conflict in medical opinion 

remains regarding the degree of appellant’s right lower extremity impairment.

OWCP determined that a conflict arose between Dr. Weiss, who provided an impairment 

evaluation for appellant, and Dr. McShane, the second opinion physician, regarding the extent of 

appellant’s permanent impairment of the right lower extremity. It ultimately referred him to

Dr. Elkins, a Board-certified orthopedic surgeon, for an impartial medical examination. 

Dr. Elkins indicated that his evaluation was based on objective findings, as any rating 

should be, noting that visual atrophy could not be judged because of appellant’s obesity. He also 

 

17 5 U.S.C. § 8107; 20 C.F.R. § 10.404.

18 20 C.F.R. § 10.404; E.S., Docket No. 20-0559 (issued October 29, 2020); see also Ronald R. Kraynak, 53 ECAB 

130 (2001).

19 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.5 (March 2017).

20 Supra note 5 at 509-11.

21 Id. at 515-22.
10

opined that weakness was a subjective test with objective corroboration, and he could not 

determine if appellant’s weakness was totally physiological. Dr. Elkins wrote that, for this reason, 

he felt that data to be used for grade modifiers was inaccurate, and therefore the modifiers were 

not used. He continued that he reviewed his calculations using objective data only and, noting 

appellant’s lack of correlation between subjective complaints and objective findings and symptom 

magnification, no modifiers were used.

The record reflects that Dr. Weiss, who examined appellant on January 11, 2011, initially 

advised that under Table 16-3, appellant had 24 percent permanent right lower extremity 

impairment for patellofemoral arthritis. Dr. McShane calculated three percent permanent 

impairment based on a class 1 full-thickness cartilage defect. On July 21, 2011 OWCP granted 

appellant a schedule award for three percent permanent impairment of his right lower extremity. 

Following further development of the claim, appellant was ultimately referred to Dr. Elkins 

for an impartial medical examination to resolve the conflict in the case. On April 26, 2017

Dr. Elkins reported that under Table 16-3, appellant had a grade 2 impairment of 15 percent for a 

diagnosis of patellofemoral arthritis. In a July 12, 2017 supplemental report, he provided further 

explanation regarding why he did not apply grade modifiers to his calculation and indicated that 

appellant had a 1 mm cartilage defect. Dr. Butler, serving as DMA, reviewed both of Dr. Elkins’

reports. OWCP then granted appellant a schedule award for an additional 12 percent right lower 

extremity impairment by decision dated August 10, 2017. 

Upon further reflection, in a January 12, 2018 report, Dr. Weiss indicated that appellant 

had 20 percent total impairment based on a class 2 assignment for no cartilage interval. He based 

this upon his evaluation and Dr. Sheppard’s review of a June 16, 2014 right knee x-ray. On April 2, 

2018 an OWCP hearing representative vacated the August 10, 2017 decision. OWCP secured a 

supplemental report from its DMA, Dr. Butler, and on May 30, 2018 found that appellant was not 

entitled to schedule award compensation greater than the 15 percent previously awarded. By 

decision dated February 13, 2019, an OWCP hearing representative affirmed the May 30, 2018 

decision. 

Although all physicians agree that appellant’s right lower extremity impairment should be 

calculated under Table 16-3 for a diagnosis of patellofemoral arthritis, a difference in opinion 

remains regarding the degree of the cartilage defect on which the class of impairment is based. 

Dr. Weiss found that no cartilage remained, and Dr. Elkins indicated that appellant had a 1 mm 

defect. As such, Dr. Elkins’ opinion cannot carry the special weight of the medical evidence and 

serve as a basis for the schedule award.22 Consequently, the Board finds that further development 

of the medical evidence is required to determine the extent of appellant’s permanent right knee 

impairment for schedule award purposes.23 The Board will, therefore, remand the case to OWCP 

to further develop the medical evidence as to the extent of appellant’s right lower extremity 

permanent impairment. On remand it shall refer appellant to a specialist in the appropriate field 

of medicine for an impartial evaluation and report which includes a rationalized opinion as to the 

 

22 See V.H., Docket No. 18-0848 (issued February 25, 2019).

23 J.M., Docket No. 19-0114 (issued June 12, 2019).
11

extent of appellant’s right lower extremity permanent impairment. The specialist shall obtain right

knee x-rays and provide an opinion in accordance with section 16.3c of the A.M.A., Guides.

24

Given the varying opinions provided in the application of the net adjustment formula, 

OWCP should also request additional information pertaining to the use and assignment of grade 

modifiers.25 Following this and such further development deemed necessary, OWCP shall issue a 

de novo decision regarding appellant’s schedule award claim.

26

 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the February 13, 2019 decision of the Office of 

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

proceedings consistent with this decision of the Board.

Issued: January 26, 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

 

24 Supra note 5 at 518. This section provides that imaging studies are used to grade arthritis, and indicates that 

cartilage interval or joint space is the best indicator of disease stage and impairment of the lower extremity. It further 

provides that the estimate for the patellofemoral joint is based on a “sunrise view” taken at 40 degrees flexion or on a 

true lateral view.

25 M.M., Docket No. 18-0235 (issued September 10, 2019).

26 E.S., Docket No. 20-0559 (issued October 29, 2020).