United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Bonner Springs, KS, Employer

__________________________________________

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Docket No. 21-0069

Issued: October 19, 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

JANICE B. ASKIN, Judge

JURISDICTION

On October 22, 2020 appellant, through counsel, filed a timely appeal from a May 21, 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.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 May 21, 2020 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. 
2

ISSUE

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

percent permanent impairment of the right lower extremity, for which she previously received a 

schedule award.

FACTUAL HISTORY

This case has been previously before the Board.4 The facts and circumstances as set forth 

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

follows.

On December 27, 2008 appellant, then a 40-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she suffered an injury to her right knee when she 

slipped off of icy steps while in the performance of duty. She stopped work on 

December 27, 2008. On January 13, 2009 OWCP accepted appellant’s claim for a tear of medial 

meniscus of knee, current right, and a tear of anterior cruciate ligament (ACL), right. 

In a January 29, 2009 medical report, Dr. Don Miskew, a Board-certified orthopedic 

surgeon, performed an arthroscopic partial medial meniscectomy of the right knee to treat 

appellant’s condition. In a duty status report (Form CA-17) of even date he advised work 

restrictions for her to follow. 

On January 10, 2010 appellant filed a claim for a schedule award (Form CA-7). 

In a January 22, 2010 development letter, OWCP advised appellant of the deficiencies of 

her claim and requested medical evidence containing a detailed description of her permanent 

impairment specific to the accepted work-related condition, a date of maximum medical 

improvement (MMI), a final rating of permanent impairment, and a discussion of the rationale for 

the calculation of the impairment under the sixth edition of the American Medical Association, 

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

5

 It afforded her 30 days to 

submit the necessary evidence. 

In a February 1, 2010 letter, Dr. Miskew opined that, secondary to appellant’s right knee 

injury, she had incurred seven percent disability of her right lower extremity and three percent 

whole person per the fourth edition of the A.M.A., Guides. 

In a March 11, 2010 permanent impairment evaluation Dr. Daniel Zimmerman, Boardcertified in internal medicine and serving as district medical adviser (DMA), reviewed the medical 

evidence of record and a statement of accepted facts (SOAF). He determined that, based on the 

sixth edition of the A.M.A., Guides, appellant had two percent permanent impairment of her right 

lower extremity. 

4 Docket No. 11-1331 (issued February 16, 2012).

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

By decision dated March 19, 2010, OWCP granted a schedule award for two percent 

permanent impairment for appellant’s right lower extremity. The award ran for 5.76 weeks from 

February 1 to March 13, 2010 and was based on the March 11, 2010 medical report from DMA

Dr. Zimmerman.6

In a May 28, 2010 medical report, Dr. William Grant, Board-certified in internal medicine, 

reviewed the history of appellant’s employment injury and her subsequent treatment for her 

accepted right knee conditions. Referencing the sixth edition of the A.M.A., Guides he determined 

that she had 19 percent permanent impairment of her right lower extremity. 

On January 10, 2011 appellant, through counsel, requested reconsideration of OWCP’s 

March 19, 2010 schedule award decision. 

In a February 4, 2011 report, DMA Dr. Zimmerman noted his review of Dr. Grant’s 

medical report and contended that Dr. Grant did not provide rationale for how he arrived at his 

impairment rating and that he did not perform his evaluation of appellant in accordance with the 

A.M.A., Guides. 

By decision dated March 31, 2011, OWCP denied modification of its March 19, 2010 

decision. 

On May 10, 2011 appellant appealed to the Board. By decision dated February 16, 2012,

the Board affirmed OWCP’s March 31, 2011 decision, finding that the medical evidence of record 

was insufficient to establish greater than the two percent permanent impairment previously 

awarded. 

On September 4, 2019 appellant filed a Form CA-7 claim for an increased schedule award. 

In a September 16, 2019 development letter, OWCP advised appellant that it had received 

no evidence in support of her September 4, 2019 claim for an increased schedule award. It 

requested medical evidence containing a detailed description of her permanent impairment specific 

to the accepted work-related condition, a date of MMI, a final rating of permanent impairment, 

and a discussion of the rationale for the calculation of the impairment under the sixth edition of 

the A.M.A., Guides. OWCP afforded appellant 30 days to submit the necessary evidence. 

On October 16, 2019 OWCP referred appellant, the medical evidence of record and a 

SOAF to Dr. Joseph Sankoorikal, Board-certified in physical medicine for a second opinion 

evaluation. 

In an October 31, 2019 impairment evaluation, Dr. Sankoorikal reviewed the medical 

evidence of record and the SOAF and noted his examination findings. He noted that appellant 

reached MMI in February 2009 for her diagnoses of an ACL tear, a medial meniscus tear and 

contusion of the medial femoral condyle, status postarthroscopic partial medial meniscectomy of 

the right knee, and had since resumed regular-duty work. Referencing page 509 of the sixth edition 

6 On March29, 2010 appellant, through counsel, requested a telephonic hearing before a representative of OWCP’s 

Branch of Hearings and Review. However, OWCP subsequently notified her that her telephonic hearing, scheduled 

for July 1, 2010, had been cancelled. 
4

of the A.M.A, Guides, Dr. Sankoorikal categorized appellant’s injury as a class one meniscal 

injury and granted a grade modifier for functional history (GMFH) of one, a grade modifier for 

physical examination (GMPE) of one, and a clinical studies grade modifier (GMCS) of 1. Using 

the net adjustment formula, he calculated two percent permanent impairment of her right lower 

extremity. 

On November 21, 2019 OWCP referred the medical evidence of record and a SOAF to

Dr. Herbert White Jr., Board-certified in occupational medicine and serving as a DMA, for a

review of the medical record and an impairment evaluation. 

In a November 26, 2019 impairment evaluationDr. White reviewed the medical record and 

SOAF concerning her diagnoses of a right medial meniscus tear and a right cruciate ligament 

sprain. Referring to page 509, Table 16-3 of the sixth edition of the A.M.A., Guides, he 

categorized appellant’s injury as a class one meniscal injury and calculated two percentright lower 

extremity permanent impairment, agreeing with Dr. Sankoorikal’s evaluation. 

In a December 11, 2019 diagnostic report, Dr. Scott Sher, a Board-certified radiologist, 

performed a magnetic resonance imaging (MRI) scan of appellant’s right knee, finding no 

evidence of an acute ACL tear, maceration of the posterior horn and body of the medial meniscus, 

moderate degenerative changes of the medial compartment and minimal degenerative changes of 

the lateral compartment, as well as a para-meniscal cyst located lateral to the posterior horn. 

In a December 12, 2019 letter, OWCP again requested that DMA Dr. White review the 

impairment rating provided by Dr. Sankoorikal in his October 31, 2019 report. In his 

December 18, 2019 addendum, Dr. White again expressed his agreement with Dr. Sankoorikal’s 

determination of a two percent right lower extremity impairment. He noted that appellant had

previously received a schedule award for two percent permanent impairment of her right lower 

extremity and determined that she had incurred no additional impairment. 

By decision dated January 16, 2020, OWCP denied appellant’s claim for an increased

schedule award. 

On January 27, 2020 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

In a February 17, 2020 impairment evaluation Dr. Stephen Wilson, a Board-certified 

orthopedic surgeon, detailed his September 23, 2019 evaluation of appellant’s right knee. He 

reviewed the history of her December 27, 2008 employment injury as well as her subsequent 

medical treatment and the December 11, 2019 MRI scan of her right knee. Dr. Wilson diagnosed 

right knee chondromalacia, diffuse full thickness cartilage loss of the medial compartment, 

meniscus derangement, a bucket handle tear of the medial meniscus, and other tear of the medial 

meniscus. He observed that appellant had previously received a schedule award of two percent 

permanent impairment of the right lower extremity as a result of her injuries and requested that, 

due to obvious changes in her symptomology, that her schedule award be increased. Per Table 16-

3 of the A.M.A., Guides, Dr. Wilson opined that her condition had worsened in the sense that she 

now had diffuse full thickness cartilage of the medial compartment, minimal degenerative changes 

of the lateral compartment and chronic deficiency of the ACL. He reasoned that the new MRI 

scan of appellant’s right knee placed her in a class one with a mid-range default value of seven 
5

percent permanent impairment. Dr. Wilson granted a GMFH of two, a GMPE of two, and a GMCS 

of two. Using the net adjustment formula, he determined that appellant had a nine percent right 

lower extremity impairment. 

On March 31, 2020 an OWCP hearing representative determined that the claim for an 

increased schedule award was not in posture for a hearing, reasoning that Dr. Wilson’s 

February 17, 2020 medical report was sufficient to require further development of the case file. 

In an April 10, 2020 letter, OWCP requested thatDr. Sankoorikal review the December 11, 

2019 MRI scan of appellant’s right knee as well as Dr. Wilson’s February 17, 2020 medical report 

and opine on whether their findings were causally related to the accepted employment incident 

and appellant’s subsequent January 2009 surgery. It provided that if Dr. Sankoorikal found that 

the MRI scan results and diagnosis of arthritis were causally related to the 2008 injury then he 

should incorporate the evidence into his impairment rating. If he did not find causal relationship 

OWCP requested that he explain whether the new medical evidence would alter his earlier 

impairment assessment. 

In response, Dr. Sankoorikal provided an April 17, 2020 letter where he opined that the 

December 11, 2019 MRI scan findings were in fact causally related to appellant’s December 27, 

20087 employment injury and her subsequent surgery in 2009. He reasoned that there was an 

element of the natural progression of arthritis, but that there was “definitely a relationship between 

the injury and the MRI [scan] findings.” Dr. Sankoorikal’s stated that his evaluation and 

recommendations would remain the same and that his reasoning was “solely based on the history 

taking as well as the examination done on October 31, 2019.” 

By decision dated May 21, 2020, OWCP denied appellant’s claim for an increased

schedule award. 

LEGAL PRECEDENT

The schedule award provisions of FECA8 and its implementing federal regulations9 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 loss of a member shall be 

determined. The method used in making such a determination is a matter, which rests in the 

discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized 

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

OWCP evaluates the degree of permanent impairment according to the standards set forth in the 

7 Dr. Sankoorikal noted that appellant sustained her injury in 2006, however, this appears to be a typographical 

error.

8

Supra note 2.

9

20 C.F.R. § 10.404.
6

specified edition of the A.M.A., Guides, published in 2009.10 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.11

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

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

(ICF).12 Under the sixth edition, the evaluator identifies the class of diagnosis (CDX), which is 

then adjusted by the GMFH, GMPE, and GMCS.13 The net adjustment formula is (GMFH-CDX) 

+ (GMPE-CDX) + (GMCS-CDX).14 Evaluators are directed to provide reasons for their 

impairment rating, including the choice of diagnoses from regional grids and the calculation of the 

modifier score.15

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

should be routed to a DMA for an opinion concerning the nature and percentage of impairment in 

accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of 

impairment specified.16

ANALYSIS

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

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

that was previously considered in its February 16, 2012 decision. Findings made in prior Board 

decisions are res judicata, absent any further review by OWCP under section 8128 of FECA.17

OWCP accepted appellant’s claim for a tear of medial meniscus of knee, current, right and 

a tear of anterior cruciate ligament, right. On March 19, 2010 it granted appellant a schedule award 

for two percent permanent impairment of her right lower extremity based on the opinion of

Dr. Sankoorikal. On September 4, 2019 appellant filed a Form CA-7 claim for an increased

schedule award.

10 For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guidesis used. A.M.A., Guides(6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).

11 See G.W., Docket No. 19-0430 (issued February 7, 2020); P.R., Docket No. 19-0022 (issued April9, 2018); 

Isidoro Rivera, 12 ECAB 348 (1961).

12 A.M.A., Guides 494-531.

13 Id.

14 Id. at 521.

15 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April1, 2011).

16 Supra note 10at Chapter 2.808.6(f) (March 2017).

17 See M.D., Docket No. 20-0007 (issued May 13, 2020); D.B., Docket No. 17-1444 (issued January 11, 2018).
7

In support of her claim, appellant submitted a February 17, 2020 impairment evaluation

from Dr. Wilson who examined appellant and diagnosed right knee chondromalacia, diffuse full 

thickness cartilage loss of the medial compartment, meniscus derangement, a bucket handle tear 

of the medial meniscus, and other tear of the medial meniscus. He determined that, under the sixth 

edition of the A.M.A., Guides, the new MRI scan of her right knee placed her in a class one with 

a mid-range default value of seven percent. Dr. Wilson found a GMFH of two, a GMPE of two,

and a GMCS of two. Using the net adjustment formula, he found that appellant had nine percent 

right lower extremity permanent impairment. 

Consistent with its procedures,18 OWCP properly referred the matter to a DMA for an 

opinion regarding appellant’s permanent impairment in accordance with the sixth edition of the 

A.M.A., Guides.

19

 It specifically requested that the DMA review the December 11, 2019 

diagnostic study as well as Dr. Wilson’s February 17, 2020 impairment evaluation. OWCP also 

asked that if he did determine that the medical findings were causally related to the 2008 injury,

then he should incorporate the evidence into his impairment rating.

Dr. Sankoorikal, serving as DMA, in an April 17, 2020 response, opined that the 

December 11, 2019 MRI scan findings were in fact causally related to appellant’s December 27, 

2008 employment injury and her subsequent surgery in 2009. He reasoned that there was an 

element of the natural progression of arthritis, but that there was “definitely a relationship between 

the injury and the MRI [scan] findings.” Dr. Sankoorikal maintained that his evaluation and 

recommendations would remain the same and that his reasoning was solely based on his 

October 31, 2019 evaluation. 

As Dr. Wilson and Dr. Sankoorikal calculated different permanent impairment ratings for 

the right lower extremity, the Board finds that there is a conflict in the medical opinion evidence 

requiring referral to an impartial medical specialist pursuant to 5 U.S.C. § 8123(a).20

The Board will, therefore, remand the case to OWCP for referral to an impartial medical 

specialist to resolve the conflict in the medical opinion as to the extent of appellant’s right lower 

extremity permanent impairment. Following this and any further development as is deemed 

necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

18 Id.

19 Supra note 18.

20 5 U.S.C. § 8123(a); see S.S., Docket No. 19-0766 (issued December 23, 2019; R.S., Docket No. 10-1704 (issued 

May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009).
8

ORDER

IT IS HEREBY ORDERED THAT the May 21, 2020 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: October 19, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board