United States Department of Labor

Employees’ Compensation Appeals Board

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J.G., Appellant

and

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, Charlotte, NC, Employer

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Docket No. 21-0434

Issued: August 16, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

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 January 28, 2021 appellant filed a timely appeal from a December 9, 2020 merit 

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

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.

ISSUE

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

percent permanent impairment of the left lower extremity for which he previously received a 

schedule award.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On February 21, 2019 appellant, then a 45-year-old federal marshal, filed a traumatic injury 

claim (Form CA-1) alleging that on February 14, 2019 he twisted his left knee while jogging 

during agency-approved training while in the performance of duty. He did not stop work.

Magnetic resonance imaging (MRI) scans of the left knee dated May 6, 2019 revealed a 

tear of the medial meniscus; probable sprain or partial tear of the posterior medial meniscocapsular junction; joint effusion; grade II to III chondromalacia of the patellofemoral joint with 

small osteochondral abnormalities; and extensor tendinosis consistent with repetitive stress of the 

patella or an old injury. By decision dated July 5, 2019, OWCP accepted the claim for tear of the 

medial meniscus and sprain of the medial collateral ligament of the left knee.

On October 15, 2019 Dr. Dana Piasecki, a Board-certified orthopedic surgeon, performed 

a left knee arthroscopy and partial meniscectomy. In the operative report, he documented a 

diagnosis of left knee medial meniscus tear, and further noted that appellant demonstrated 

approximately 50 percent of normal meniscal function pre- and postoperatively.

In a February 4, 2020 follow-up note, Dr. Piasecki indicated that he had released appellant 

to return to full-duty work effective January 2020, but that he reported ongoing medial and anterior

left knee pain with patellofemoral stress-type activities. Physical examination demonstrated full 

extension and flexion with no effusion, meniscal pathology, or medial joint line tenderness. 

Dr. Piasecki determined that appellant had reached maximum medical improvement (MMI), and 

that he had five percent permanent impairment of the left lower extremity under the sixth edition 

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

(A.M.A., Guides).

2

On February 25, 2020 appellant filed a claim for compensation (Form CA-7)for a schedule 

award.

By letter dated February 27, 2020, OWCP requested that Dr. Piasecki provide a report 

including a rationale for his calculation based upon the applicable criteria and/or tables in the 

A.M.A., Guides. Dr. Piasecki did not respond.

On April 30, 2020 OWCP referred Dr. Piasecki’s February 4, 2020 report and the case 

record to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as an OWCP district 

medical adviser (DMA), for review and evaluation of appellant’s permanent impairment pursuant 

to the A.M.A., Guides. Dr. Harris was also asked by OWCP to provide a date of MMI.

In a May 7, 2020 report, Dr. Harris indicated that he had reviewed the case file, including 

the statement of accepted facts (SOAF), and determined that appellant had reached MMI on 

February 4, 2020, the date of Dr. Piasecki’s report. He applied Table 16-3 (Knee Regional Grid), 

page 509 of the sixth edition of the A.M.A., Guides and identified the class of diagnosis (CDX) of 

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

meniscal injury as the diagnosis-based impairment (DBI), class 1 with a default value of two 

percent for partial medial meniscectomy.3

By decision dated August 18, 2020, OWCP granted appellant a schedule award for two 

percent permanent impairment of the left lower extremity. The date of MMI was found to be 

February 4, 2020. The award covered a period of 5.76 weeks from February 4, 2020 to 

March 15, 2020. OWCP noted that the weight of the medical evidence rested with Dr. Harris as 

the DMA, who properly applied the A.M.A., Guides to Dr. Piasecki’s February 4, 2020

examination findings.

On October 14, 2020 appellant requested reconsideration of the August 18, 2020 decision. 

In support of the request, he submitted a September 22, 2020 addendum report by Dr. Piasecki 

indicating that his 5 percent rating was determined based on a significant loss of meniscal function 

as a result of the meniscal tear and 50 percent meniscectomy. Dr. Piasecki further explained that 

he relied upon the loss of meniscus as a result of the procedure, his medical evaluations, and his 

personal inspection of the joint at the time of surgery, in reaching his conclusions. He stated that 

in his medical judgment, appellant’s degree of impairment represented “the lower end of a total 

meniscectomy as opposed to a middle degree of impairment from a partial meniscectomy.”

By letter dated October 22, 2020, OWCP requested that Dr. Harris review the SOAF and

Dr. Piasecki’s September 22, 2020 addendum. It further requested that he provide a supplemental 

report, including a rationalized medical opinion as to whether or not he concurred with

Dr. Piasecki’s opinion that appellant’s impairment should be based upon the lower end of a total 

meniscectomy versus a middle degree of impairment. It noted that the accepted conditions 

included tear of medial meniscus and sprain of the medial collateral ligament of the left knee.

In a supplemental report dated October 27, 2020, Dr. Harris outlined his review of the 

SOAF and Dr. Piasecki’s September 22, 2020 report. He opined that a five percent lower 

extremity rating was not consistent with the A.M.A., Guides, and explained that the 50 percent 

partial medial meniscectomy only resulted in two percent lower extremity impairment based upon 

Table 16-3, page 509, as the condition was consistent with a “CDX 1C” based upon the reviewed 

information. 

By decision dated December 9, 2020, OWCP denied modification of its August 18, 2020 

decision.

LEGAL PRECEDENT

The schedule award provisions of FECA4 and its implementing regulations5 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. FECA, however, does not 

specify the manner in which the percentage of loss of a member shall be determined. The method 

3

Id. at 509, Table 16-3.

4

Supra note 1.

5

20 C.F.R. § 10.404.
4

used in making such determination is a matter which rests in the sound discretion of OWCP. For 

consistent results and to ensure equal justice, good administrative practice necessitates the use of 

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

A.M.A., Guides has been adopted by OWCP as a standard for evaluation of schedule losses and 

the Board has concurred in such adoption.6 For schedule awards issued after May 1, 2009, the 

impairment is evaluated under the sixth edition of the A.M.A., Guides, published in 2009.7

It is the claimant’s burden of proof to establish permanent impairment of the scheduled 

member or function of the body as a result of an employment injury.8 OWCP’s procedures provide 

that, to support a schedule award, the file must contain competent medical evidence which shows 

that the impairment has reached a permanent and fixed state and indicates the date on which this 

occurred (date of MMI), describes the impairment in sufficient detail so that it can be visualized 

on review, and computes the percentage of impairment in accordance with the A.M.A., Guides.

9

 

In addressing lower extremity impairments, the sixth edition requires identification of the 

impairment CDX, which is then adjusted by a grade modifier functional history (GMFH), a grade 

modifier for physical examination (GMPE), and/or a grade modifier for clinical studies (GMCS).10 

The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11

In some instances, a DMA’s opinion can constitute the weight of the medical evidence.12 

This occurs in schedule award cases where an opinion on the percentage of permanent impairment 

and a description of physical findings is on file from an examining physician, but the percentage 

estimate by this physician is not based on the A.M.A., Guides.

13

 In this instance, a detailed opinion 

by a DMA may constitute the weight of the medical evidence as long as he or she explains his or 

her opinion, shows values and computation of impairment based on the A.M.A., Guides, and 

considers each of the reported findings of impairment.14 

6

Id.; see also Jacqueline S. Harris, 54 ECAB 139 (2002).

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).

8 E.D., Docket No. 19-1562 (issued March3, 2020); Edward Spohr, 54 ECAB 806, 810 (2003); TammyL. Meehan, 

53 ECAB 229 (2001).

9

Supra note 7 at Chapter 2.808.5 (March 2017).

10 A.M.A., Guides 383-492.

11 Id. at 497.

12 M.G., Docket No. 20-0078 (issued December 22, 2020); R.R., Docket No. 19-1314 (issued January3, 2020); J.H., 

Docket No. 18-1207 (issued June 20, 2019); M.P., Docket No. 14-1602 (issued January 13, 2015); supra note 7 at 

Chapter 2.810.8j (September 2010).

13 Id.

14 Id.
5

ANALYSIS

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

In support of his claim for a schedule award, appellant submitted February 4 and 

September 22, 2020 reports from Dr. Piasecki in which he found that appellant had five percent 

left lower extremity permanent impairment. He noted a diagnosis of left medial meniscus tear 

status post partial medial meniscectomy, which he opined should be rated under the lower end of 

a total meniscectomy versus a middle degree of impairment. Dr. Piasecki did not, however, cite 

to any specific authority within the A.M.A., Guides in support of his opinion.

In accordance with its procedures, OWCP properly referred the evidence of record, along 

with a SOAF, to Dr. Harris. In May 7 and October 27, 2020 reports, utilizing Table 16-3, page 

509 of the A.M.A., Guides, Dr. Harris found that the most appropriate diagnosis for rating 

purposes was a partial medial meniscectomy, a documented injury with residual findings, which 

was a Class 1 with a default value of two percent. He did not, however, review the May 6, 2019 

MRI scan results, note any grade modifiers, or apply the net adjustment formula consistent with 

the sixth edition of the A.M.A., Guides. Therefore, the Board finds that Dr. Harris’ report is 

insufficient to constitute the weight of the evidence.

15

 

It is well established that proceedings under FECA are not adversarial in nature, and while 

the employee has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence.16 Once OWCP undertook development of the 

evidence by referring appellant’s case file to an OWCP medical adviser, it had an obligation to do 

a complete job and obtain a proper evaluation and a report that would resolve the issue in this 

case.17 The Board will therefore set aside OWCP’s December 9, 2020 decision and remand the 

case for the DMA to conduct a proper analysis under the A.M.A., Guidesin order to determine if 

appellant had greater than two percent permanent impairment of his left lower extremity. After 

this and other such further development as deemed necessary, OWCP shall issue a de novo

decision.

CONCLUSION

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

15 Supra note 10.

16 See W.W., Docket No. 18-0093 (issued October 9, 2018); DonaldR. Gervasi, 57 ECAB 281, 286 (2005); 

WilliamJ. Cantrell, 34 ECAB 1233, 1237 (1983).

17 See 5 U.S.C. § 8101(19); J.K., Docket Nos. 19-1420 & 19-1422 (issued August 12, 2020); FrancescoC. 

Veneziani, 48 ECAB 572 (1997).
6

ORDER

IT IS HEREBY ORDERED THAT the December 9, 2020 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: August 16, 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