United States Department of Labor

Employees’ Compensation Appeals Board

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D.W., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, FEDERAL TRANSFER CENTER, 

Oklahoma City, OK, Employer

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Docket No. 21-0840

Issued: November 30, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On May 12, 2021 appellant filed a timely appeal from a February 1, 2021 merit decision 

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

Compensation Act1 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 right lower extremity for which he previously received a 

schedule award.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On January 10, 2018 appellant, then a 48-year-old material handler, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his left ankle and right knee that day when he stepped 

on an uneven sidewalk, rolled his left ankle, and fell onto his right knee while in the performance 

of duty.

On April 10, 2018 OWCP accepted appellant’s claim for right knee contusion, other 

internal derangements of right knee, right medial meniscus tear, and right knee lateral collateral 

ligament sprain. 

On April 11, 2019 Dr. Brian Levings, an osteopathic physician Board-certified in 

orthopedic surgery, performed OWCP-authorized right knee arthroscopy with partial lateral 

meniscectomy, chondroplasty of the patella, and lateral retinacular release. 

In a July 19, 2019 report, Dr. Levings noted arthritic changes of the right knee, which were 

not symptomatic prior to the January 10, 2018 employment injury. On examination he found full 

flexion, mild patellar crepitation, a positive patellofemoral grind test, grade 0 drawer and anterior 

drawer signs, and a negative McMurray test. Dr. Levings diagnosed right knee patellofemoral 

syndrome, right patella internal derangement, chondromalacia of the right patella, right lateral 

meniscus tear due to old injury, and right knee post-traumatic osteoarthritis. He released appellant

to full duty effective July 19, 2019. Dr. Levings released appellant from care on August 30, 2019.

On October 31, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

In support of his claim, appellant submitted an October 22, 2019 report by Dr. John W. 

Ellis, a Board-certified family practitioner. Dr. Ellis provided a history of injury and treatment, 

and noted that appellant had attained maximum medical improvement (MMI) as of that date. On 

examination of the right knee he noted arthroscopic scars, crepitation with movement of the 

patella, laxity of the medial collateral ligament with 6 degrees of movement, and laxity of the 

lateral collateral ligament with 8 degrees of movement, and flexion limited to 100 degrees based 

on three trials of range of motion. Dr. Ellis diagnosed right knee contusion, other internal 

derangements of right knee, other tear of right medial meniscus and sprain of lateral collateral 

ligament of right knee. He indicated that he would provide an impairment rating using the 

diagnosis-based impairment (DBI) method. Utilizing Table 16-3 (Knee Regional Grid), page 510,

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

(A.M.A., Guides),2 Dr. Ellis determined that appellant’s class of diagnosis (CDX) for mild lateral 

collateral ligament laxity resulted in a class 1 impairment with a default value of 10. He noted a 

grade modifier for functional history (GMFH) of 1, mild, and a grade modifier for physical 

examination (GMPE) of 1 due to a mild loss of flexion. Dr. Ellis noted no applicable grade 

modifier for clinical studies (GMCS). After applying the net adjustment formula (GMFH-CDX) 

+ (GMPE-CDX), or (1-1) + (1-1), he determined that appellant had a net adjustment score of zero, 

which resulted in 10 percent permanent impairment of the right lower extremity due to lateral 

collateral ligament laxity. Referring to Table 16-3, page 509, of the A.M.A., Guides, Dr. Ellis

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

determined that the CDX for lateral meniscectomy resulted in a class 1 impairment with a default 

value of 2. He noted a GMFH of 1 and GMPE of 1. Applying the net adjustment formula to 

calculate a net adjustment of zero, he found two percent permanent impairment of the right lower 

extremity due to lateral meniscectomy. Dr. Ellis noted that, using the range of motion (ROM) 

method, appellant had 10 percent permanent impairment of the right lower extremity according to 

Table 16-23 (Knee Motion Impairments). He explained that, according to Section 16-2 

(Diagnosis-Based Impairment), page 497 of the A.M.A., Guides, only one diagnosis was 

appropriate. Dr. Ellis opined that, as the meniscectomy was a contributing factor to ligamentous 

laxity, the appropriate diagnosis was lateral collateral ligament laxity of the lateral retinacular 

release, equaling 10 percent permanent impairment of the right lower extremity.

On April 24, 2020 OWCP forwarded Dr. Ellis’ report, the medical record, and statement 

of accepted facts (SOAF) to Dr. Morley Slutsky, a Board-certified orthopedic surgeon, to serve as 

a district medical adviser (DMA). In a May 10, 2020 report, Dr. Slutsky reviewed the SOAF and 

medical record. He opined that, according to the DBI rating method, appellant had two percent 

impairment of the right lower extremity for partial lateral meniscectomy according to Table 16-3. 

Dr. Slutsky noted that no other examiner had assessed lateral collateral ligament laxity, which was, 

therefore, an unreliable finding and would not be included in impairment calculations. He opined 

that the DBI method should be utilized as it appropriately described appellant’s diagnosed 

condition, and the impairment did not meet the criteria under Section 16.7, page 543 to allow 

application of the ROM method. Additionally, Dr. Slutsky noted that Dr. Ellis “documented only 

one measurement per each joint motion” and, as such, the measurements were not valid for rating 

purposes.

OWCP, in a development letter dated September 1, 2020, requested that appellant ask

Dr. Ellis to review Dr. Slutsky’s May 10, 2020 report and submit an addendum/supplemental 

report addressing the differences between the impairment ratings. 

In a September 24, 2020 letter, Dr. Ellis noted that he had reviewed Dr. Slutsky’s 

impairment rating. He contended that Dr. Slutsky erred by noting that Dr. Ellis had performed 

only one measurement for each joint motion whereas he had provided three. 

On December 3, 2020 OWCP forwarded Dr. Ellis’ September 24, 2020 letter to

Dr. Slutsky for review. It requested that Dr. Slutsky submit an addendum report addressing

Dr. Ellis’ contentions.

In a December 24, 2020 report, Dr. Slutsky acknowledged that Dr. Ellis had provided 

appropriate ROM measurements, but that the ROM rating method was inappropriate as ROM was 

used as a grade modifier. He reiterated that appellant had two percent permanent impairment of 

the right lower extremity for partial lateral meniscectomy.

By decision dated February 1, 2021, OWCP granted appellant a schedule award for two

percent permanent impairment of the right lower extremity. The award ran for 5.76 weeks from 

October 22 through December 1, 2019. OWCP noted that the schedule award was based on the 

October 22, 2019 report of Dr. Ellis and the December 24, 2020 DMA report by Dr. Slutsky.
4

LEGAL PRECEDENT

The schedule award provisions of FECA3 and its implementing regulations4 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. 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.5 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used 

to calculate schedule awards.6

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 right knee, the relevant position of the right leg for the present 

case, reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.7 After 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).8 Evaluators are directed to provide 

reasons for their impairment rating choices, including the choices of diagnosis from regional grids 

and calculations of modifier scores.9

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 

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

providing rationale for the percentage of impairment specified.10

Section 8123(a) of FECA, which provides that, if there is disagreement between the 

physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician (known as a referee physician or impartial medical 

specialist) who shall make an examination.11 This is called a referee examination and OWCP will 

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404 (a); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

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

2.808.5a (March 2017); see alsoChapter 3.700.2 and Exhibit 1 (January 2010).

7

See A.M.A., Guides (6th ed. 2009) 509-11.

8

Id. at 515-22.

9

Id. at 23-28; see R.V., Docket No. 10-1827 (issued April1, 2011).

10 See supra note 6 at Chapter 2.808.6(f) (March 2017).

11 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009); M.S., 58 ECAB 328 (2007).
5

select a physician who is qualified in the appropriate specialty and who has no prior connection 

with the case.12 When there exists opposing reports of virtually equal weight and rationale and the 

case is referred to an impartial medical specialist for the purpose of resolving the conflict, the 

opinion of such specialist, if sufficiently well rationalized and based upon a proper factual 

background, must be given special weight.13

ANALYSIS

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

OWCP accepted appellant’s claim for right knee contusion, other internal derangements of 

the right knee, right medial meniscus tear, and right knee lateral collateral ligament sprain. On 

October 31, 2019 appellant filed a schedule award claim due to his accepted condition.

In support of his schedule award claim, appellant submitted a report from his physician,

Dr. Ellis, dated October 22, 2019 utilizing both the DBI and ROM methods to calculate a right 

knee impairment. Utilizing Table 16-3, page 510, of the A.M.A., Guides,

14 Dr. Ellis determined 

a class 1 CDX for mild lateral collateral ligament laxity, a GMFH of 1, and a GMPE of 1. 

Application of the net adjustment formula resulted in a net adjustment score of zero, which resulted 

in 10 percent permanent impairment of the right lower extremity due to lateral collateral ligament 

laxity. Dr. Ellis also calculated 2 percent permanent impairment of the right lower extremity due 

to lateral meniscectomy, but explained that the 10 percent permanent impairment for ligamentous 

laxity better described appellant’s impairment as the meniscectomy contributed to ligamentous 

laxity. He explained that, utilizing the ROM method, appellant also had 10 percent permanent 

impairment of the right lower extremity according to Table 16-23 (Knee Motion Impairments). 

However, Dr. Ellis found that, according to Section 16-2 of the A.M.A., Guides, which allowed 

for only one rating methodology, the DBI method rating for ligamentous laxity was the most 

appropriate for appellant’s presentation. He ultimately concluded that appellant had 10 percent 

permanent impairment of the right lower extremity due to lateral collateral ligament laxity.

In reports dated May 10 and December 24, 2020, Dr. Slutsky, the DMA found appellant 

had two percent permanent impairment of the right lower extremity for status post lateral 

meniscectomy according to Table 16-3. He opined that Dr. Ellis’ finding of lateral collateral 

ligament laxity was unreliable as it had not been observed by another clinician.

As Dr. Ellis, appellant’s attending physician, and Dr. Slutsky, an OWCP DMA, disagree 

regarding the nature and extent of appellant’s right lower extremity permanent impairment, the 

Board finds that a conflict in medical opinion exists.15 As noted above, if there is a disagreement 

between an employee’s physician and OWCP’s physician, OWCP shall appoint a third physician, 

12 20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

13 See Darlene R. Kennedy, 57 ECAB 414 (2006); GloriaJ. Godfrey, 52 ECAB 486 (2001).

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

15 L.E., Docket No. 20-1505 (issuedJune7, 2021); C.B., Docket No. 20-0258 (issued November 2, 2020).
6

known as a referee physician or impartial medical specialist, who shall make an examination.16 

Because the reports of Dr. Ellis and Dr. Slutsky are virtually of equal weight, appellant must be 

referred to an impartial medical examiner to resolve the existing conflict in the medical opinion 

evidence regarding the extent of the permanent impairment of his right lower extremity. 17

On remand OWCP shall refer appellant, along with the case record and SOAF, to a 

specialist in the appropriate field of medicine for an impartial medical evaluation and a rationalized 

opinion as to the extent of his right lower extremity permanent impairment. Following this and 

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

regarding appellant’s schedule award claim.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the February 1, 2021 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: November 30, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

16 5 U.S.C. § 8123(a); see R.S. and S.T., supra note 11.

17 M.M., Docket No. 18-0235 (issued September 10, 2019); L.W., Docket No. 19-1208 (issued July 19, 2019).