United States Department of Labor

Employees’ Compensation Appeals Board

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C.S., Appellant

and

DEPARTMENT OF THE ARMY, 

DIRECTORATE OF EMERGENCY SERVICES, 

FORT HAMILTON, Brooklyn, NY, Employer

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Docket No. 21-1345

Issued: February 21, 2023

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On September 9, 2021 appellant, through counsel, filed a timely appeal from a July 27, 

2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2and 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 a scheduled member or function of the body, warranting a schedule award.

FACTUAL HISTORY

On April 6, 2017 appellant, then a 45-year-old police officer, filed a traumatic injury claim 

(Form CA-1) alleging that on March 29, 2017 he sustained a right knee sprain, right knee bruising,

and left elbow pain when he fell onto his right knee apprehending a suspect while in the 

performance of duty. He stopped work on the date of injury. On May 11, 2017 OWCP accepted 

the claim for a right knee sprain and right knee contusion. By separate decision of even date, it

denied the claim for an internal derangement of the right knee. 

On June 30, 2017 OWCP expanded acceptance of appellant’s claim to include a left biceps 

tendon tear. It paid him wage-loss compensation on the supplemental rolls for the period May 28 

through August 20, 2017.3

Appellant returned to full-duty work on August 21, 2017. 

On June 24, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

In a development letter dated July 3, 2019, OWCP notified appellant of the additional 

medical evidence needed to establish his schedule award claim, including a statement from his 

attending physician indicating that the employment-related impairment had reached maximum 

medical improvement (MMI), and a description of the impairment in sufficient detail to visualize 

the character and degree of loss utilizing the appropriate portions of 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 respond. No response was received within the time allotted.

By decision dated September 19, 2019, OWCP denied appellant’s schedule award claim, 

finding that the evidence of record was insufficient to establish permanent impairment of a 

scheduled member or function of the body.

On September 20, 2019 OWCP received an August 26, 2019 report by Dr. Daniel M. 

Downs, a Board-certified orthopedic surgeon. Dr. Downs reviewed a history of injury and 

treatment and found that appellant had attained MMI. He noted that the appearance of appellant’s 

left bicep had not returned to normal following surgery, and that appellant’s right knee remained 

symptomatic after physical therapy. On examination of the right knee, Dr. Downs noted a positive 

patellofemoral grind test, good stability, full extension, and 120 degrees flexion measured with a 

goniometer. He opined that the May 11, 2017 magnetic resonance imaging (MRI) scan of the right 

knee indicated cartilaginous injury in the intercondylar notch of the femur. On examination of the 

3 OWCP authorized a transcutaneous electrical neurostimulator unit. 

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

left upper extremity, Dr. Downs utilized a goniometer to measure 140 degrees elbow flexion, 

“extension lacking 25 degrees,” 90 degrees pronation, and 75 degrees supination. He diagnosed a 

left distal bicep tendon rupture with repair, and a right knee sprain with chondromalacia in the 

intercondylar notch of the femur. Referring to Table 16-1 (The Lower Extremities- Definition of 

Impairment Classes), page 495 of the A.M.A., Guides, Dr. Downs assigned a Class 2 impairment 

for a moderate problem with cartilaginous injury to the articular surface. He noted an unspecified 

grade modifier of 1 with “vigorous or extensive use of the limb,” resulting in 15 percent permanent 

impairment of the right lower extremity. Regarding the left upper extremity, Dr. Downs 

referenced Table 15-35 (The Upper Extremities – Range of Motion Grade Modifiers), page 477 of 

the A.M.A., Guides to find a grade modifier for functional history (GMFH) of 1 for limitation of 

elbow extension between 10 to 40 degrees. He also referred to Table 15-33 (Elbow/Forearm Range 

of Motion), page 474, to assess a grade modifier of 1 for limited extension. Dr. Downs combined 

“the lack of extension with the Grade Modifier with Table 15-35” to find a grade modifier of 2, 

resulting in 13 percent permanent impairment of the left upper extremity due to biceps tendon 

rupture.

On September 26, 2019 appellant, through counsel, requested a telephonic oral hearing 

before a representative of OWCP’s Branch of Hearings and Review. 

Following a preliminary review, by decision dated December 3, 2019, an OWCP hearing 

representative found that the case was not in posture for a hearing. The hearing representative 

remanded the case to OWCP to refer appellant, a statement of accepted facts (SOAF), and the 

medical record to an OWCP district medical adviser (DMA) to determine the appropriate 

percentage of permanent impairment based on the diagnosis-based impairment (DBI) and range of 

motion (ROM) methods, to be followed by a de novo decision. 

On December 13, 2019 OWCP referred the medical record and a SOAF to Dr. Michael M. 

Katz, a Board-certified orthopedic surgeon serving as an OWCP DMA. In a March 11, 2020 

report, Dr. Katz reviewed the SOAF and the medical record, including Dr. Downs’ report. He 

opined that the date of MMI was undetermined. Dr. Katz found that Dr. Downs did not reference 

the correct table in assessing permanent impairment of the right lower extremity, and that the single 

set of ROM measurements for the left upper extremity did not justify a 13 percent permanent 

impairment of the left upper extremity based on Table 15-33. He therefore opined that Dr. Downs’

impairment rating was not probative for determining a schedule award in appellant’s case. 

Dr. Katz recommended that OWCP refer appellant to an appropriate specialist for a second opinion 

examination and impairment evaluation. 

On June 17, 2020 OWCP referred appellant, a SOAF, and a series of questions to

Dr. Stanley Askin, a Board-certified orthopedic surgeon, to establish appellant’s permanent 

impairment for schedule award purposes. 

In a July 10, 2020 report, Dr. Askin discussed appellant’s factual and medical history, 

reviewed the SOAF and the medical record, and reported the findings of his physical examination 

of appellant. He opined that appellant had attained MMI as of that date. Dr. Askin advised that 

appellant was status post left biceps tendon repair and had also fully recovered from a remote 

cervical discectomy and fusion. On examination, he observed that appellant was contracting his 

right biceps more so than his left biceps, but that, with appellant’s arms relaxed, the biceps 
4

circumference on the left was “36 cm” and “35 cm” on the right although appellant was right-hand 

dominant. Dr. Askin found no functional issues in the left forearm, noting a well-healed scar from 

the left biceps tendon repair with cosmetic dimpling. Finkelstein’s test and percussion at Guyon’s 

canal were negative bilaterally. On examination of the right lower extremity, Dr. Askin found no 

atrophy, discomfort at the right knee with active flexion against resistance, tenderness to palpation 

in the medial aspect, no overt laxity of the lateral collateral, medial collateral, anterior, or posterior 

cruciate ligaments, no overt effusion, no overt patellofemoral tracking abnormality, and full range 

of right knee motion. He opined that appellant had no objective findings consequential to the 

accepted right knee and left elbow injuries. Referring to Table 15-4 (Elbow Regional Grid: Upper 

Extremity Impairments), page 399 of the A.M.A., Guides, Dr. Askin found a Class 0 impairment 

for no residual findings after surgical treatment, indicating no permanent impairment of the left 

upper extremity. He also opined that appellant had no permanent impairment of the right lower 

extremity, as the musculature in the affected limb was of greater circumference than the unaffected 

limb, corresponding to normal status. Dr. Askin noted that, insofar as Dr. Downs had noted mild 

objective findings in his August 26, 2019 report, that appellant’s condition had evidently improved 

during the prior 11 months.

On August 17, 2020 OWCP referred Dr. Askin’s report, the medical record, and a series 

of questions to Dr. Katz for determination of the appropriate percentage of impairment. 

In an August 21, 2020 report, Dr. Katz reviewed Dr. Askin’s report. He opined that,

according to Table 15-4, appellant had no permanent impairment of the left upper extremity as 

there were no objective findings on examination, equaling a Class 0 impairment with a default 

value of zero with no net adjustment. Regarding the right lower extremity, Dr. Katz referred to 

Table 16-3 (Knee Regional Grid), pages 509 to 511, to find a Class 0 impairment for a knee 

contusion with no significant abnormal objective findings at MMI, equaling a zero percent 

permanent impairment of the right lower extremity. He opined that these ratings were supported 

by Dr. Askin’s clinical findings on examination. Dr. Katz noted that, as Dr. Askin had not 

observed any motion deficits on examination, there was no basis for a ROM impairment of either 

the left upper extremity or right lower extremity. 

By decision dated January 22, 2021, OWCP denied appellant’s schedule award claim, 

finding that he had not established permanent impairment of a scheduled member or function of 

the body, warranting a schedule award. 

On February 9, 2021 appellant, through counsel, requested a telephonic oral hearing before 

a representative of OWCP’s Branch of Hearings and Review. At the hearing, held May 13, 2021, 

counsel contended that OWCP impermissibly allowed Dr. Katz, as DMA, to resolve a conflict of 

medical opinion between Dr. Downs, for appellant, and Dr. Askin, for the government, regarding 

the appropriate percentage of permanent impairment. 

By decision dated July 27, 2021, an OWCP hearing representative affirmed the January 22, 

2021 decision. The hearing representative found that Dr. Downs’ opinion was of diminished 

probative value as he misapplied the A.M.A., Guides. Therefore, Dr. Katz properly accorded 

greater weight to Dr. Askin’s impairment rating. 
5

LEGAL PRECEDENT

The schedule award provisions 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.5 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.6 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).7 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.8

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

should be routed through an OWCP medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser 

providing rationale for the percentage of impairment specified.9

ANALYSIS

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

impairment of a scheduled member or function of the body, warranting a schedule award.

In his August 26, 2019 report, Dr. Downs opined that appellant had attained MMI. He

found a 15 percent permanent impairment of the right lower extremity based on Table 16-1, for a 

Class 2 DBI for a-moderate knee problem with damage to the articular surface, augmented by 

unspecified grade modifiers. Dr. Downs also found a 13 percent permanent impairment of the left 

upper extremity due to limited extension of the left elbow, again augmented by grade modifiers 

that were not fully explained. 

Dr. Katz, in his March 11, 2020 report, recommended a second opinion referral as

Dr. Downs had based his impairment rating on inappropriate portions of the A.M.A., Guides and 

had not provided clear rationale to support the offered percentages of permanent impairment. 

OWCP then obtained a July 10, 2020 report from Dr. Askin, who provided detailed findings on 

examination and explained that appellant had no objective abnormality or dysfunction of the left 

upper extremity or right lower extremity. Dr. Askin referred to Table 15-4 (the Elbow Regional 

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

6

Id. at § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

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

(January 2010); id. at Chapter 2.808.5a (March 2017).

8

J.C., Docket No. 20-1071 (issued January 4, 2021); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro 

Rivera, 12 ECAB 348 (1961).

9 Supra note 7 at Chapter 2.808.6f (March 2017).
6

Grid), to determine a Class 0 impairment as there were no objective residual findings following 

surgical repair. Similarly, he found that appellant had a zero percent permanent impairment of the 

right lower extremity as there were no abnormal findings on examination or other evidence of 

impairment or dysfunction. Dr. Askin noted that the musculature of appellant’s injured left upper 

extremity and right lower extremity exceeded that, of the unaffected limbs, indicating a complete 

recovery from the accepted employment injuries. 

As Dr. Downs, the attending physician, misapplied the A.M.A., Guides, there is no conflict 

with Dr. Askin as Dr. Downs’ report is of diminished probative value.10 OWCP therefore properly 

accorded Dr. Askin’s opinion, as reviewed by Dr. Katz, the weight of the medical evidence.11

As appellant has not submitted medical evidence in conformance with the A.M.A., Guides

to support a permanent impairment of a scheduled member or function of the body, the Board finds 

that he has not met his burden of proof to establish his claim for a schedule award.12

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of new exposure, or medical evidence showing a progression of an employment-related 

condition resulting in permanent impairment or increased permanent impairment.

CONCLUSION

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

impairment of a scheduled member or function of the body, warranting a schedule award.

10 See M.G., Docket No. 20-0078 (issued December 22, 2020).

11 Id.

12 Id.
7

ORDER

IT IS HEREBY ORDERED THAT the July 27, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 21, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board