United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Tompkinsville, KY, Employer

__________________________________________

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Docket No. 20-1476

Issued: December 12, 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 August 3, 2020 appellant, through counsel, filed a timely appeal from a June 2, 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 June2, 2020 decision, appellant submitted additional evidence to OWCP. 

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 her burden of proof to establish greater than 13 

percent permanent impairment of her left lower extremity, for which she previously received a 

schedule award.

FACTUAL HISTORY

On January 6, 2017 appellant, then a 59-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on that date she suffered an injury when, due to snow and ice conditions,

her vehicle slid off the road and hit a tree while in the performance of duty. She stopped work on 

January 6, 2017.

On February 14, 2017 OWCP accepted appellant’s claim for displaced bicondylar fracture 

of the left tibia. On March 19, 2018 it expanded the acceptance of the claim to include medial 

meniscus tear of the left knee. OWCP paid appellant wage-loss compensation on the supplemental 

rolls commencing February 21, 2017 and on the periodic rolls commencing March 5, 2017. 

Appellant underwent OWCP-authorized left knee surgery to apply an external fixator on 

January 7, 2017. She underwent OWCP-authorized left knee arthroscopic partial medial 

meniscectomy, left knee arthroscopic partial lateral meniscectomy, and chondroplasty of the 

medial femoral condyle and tibial plateau on April 12, 2018.

Appellant returned to full-duty work on May 30, 2018.

On February 8, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

In support of her claim, appellant submitted a February 27, 2019 report from Dr. Rohn T. 

Kennington, a Board-certified family practitioner, who reviewed appellant’s medical history and 

provided physical examination findings. Dr. Kennington performed range of motion (ROM) 

testing for both knees and found 130 degrees, 128 degrees, and 134 degrees of flexion in the right 

knee and 122 degrees, 124 degrees, and 124 degrees of flexion in the left knee. He opined that 

appellant had reached maximum medical improvement (MMI) on June 25, 2018. Utilizing the 

diagnosis-based impairment (DBI) rating method of the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),4

Dr. Kennington identified the class of diagnosis (CDX) as a class 3 impairment for the diagnosis 

of tibial plateau fracture under Table 16-3 (Knee Regional Grid), page 510. He assigned a grade 

modifier for functional history (GMFH) of 1, in accordance with Table 16-6, page 516, as appellant 

had an antalgic limp with corrective footwear modifications and a grade modifier for physical 

examination (GMPE) of 1, in accordance with Table 16-7, page 517, as appellant had minimal 

palpatory findings with mild loss of ROM. He noted that a grade modifier for clinical studies 

(GMCS) was not applicable since imaging studies were used to make the diagnosis. 

Dr. Kennington calculated that appellant had a net adjustment of -4, resulting in movement from 

the default class of C to A and corresponding to 31 percent permanent impairment of the left lower 

extremity. 

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

On April 12, 2019 OWCP referred appellant’s case, along with a statement of accepted 

facts (SOAF), for a schedule award impairment rating with Dr. Arthur S. Harris, a Board-certified 

orthopedic surgeon serving as an OWCP district medical adviser (DMA). In an April 17, 2019 

report, Dr. Harris reviewed the SOAF and medical record. Utilizing the DBI rating method of the 

A.M.A., Guides, he identified the CDX as a class 1 impairment for the diagnosis of tibial plateau 

fracture under Table 16-2 (Foot and Ankle Regional Grid), page 503. Dr. Harris found that 

appellant had 13 percent permanent impairment of the left lower extremity. He noted that a ROM 

rating was not appropriate under the criteria in Section 16.7, page 543. Dr. Harris disagreed with

Dr. Kennington’s impairment rating and indicated that appellant’s condition did not meet the 

criteria for a class 3 impairment. He opined that appellant had reached MMI on February 27, 2019. 

In a May 20, 2019 report, Dr. Kennington reviewed Dr. Harris’ April 17, 2019 report. He 

disagreed with Dr. Harris’ impairment rating and noted that he used a diagnosis of tibial plateau 

fracture under Table 16-3, page 510, and not tibia fracture under Table 16-2, page 503. 

Dr. Kennington asserted that the diagnosis he used most accurately reflected appellant’s actual 

injury and was consistent with the allowed conditions in the claim. He reiterated that appellant 

had 31 percent permanent impairment of the left lower extremity.

On June 7, 2019 OWCP requested that Dr. Harris, the DMA, review and comment on

Dr. Kennington’s May 20, 2019 report. In a June 13, 2019 addendum report, Dr. Harris reviewed 

the medical record, including Dr. Kennington’s report. He asserted that Dr. Kennington’s report 

represented a conflict of opinion, which was best resolved by a second opinion orthopedic 

evaluation including more current x-rays and diagnostic studies.

On July 12, 2019 OWCP referred the case record and a SOAF to Dr. Michael A. Mackay, 

a Board-certified orthopedic surgeon, for a second opinion evaluation. In a July 30, 2019 report,

Dr. Mackay reviewed the SOAF and medical record. He provided physical examination findings 

and reviewed x-rays of appellant’s left knee. Dr. Mackay diagnosed post-traumatic osteoarthritis 

of the left knee, medial meniscus tear of the left knee, and closed fracture of the left tibial plateau. 

Utilizing the sixth edition of the A.M.A., Guides, he opined that appellant had three percent 

impairment of the left lower extremity due to the medial meniscus condition, five percent 

impairment due to the tibial plateau fracture, and five percent impairment due to degenerative joint 

disease. Dr. Mackay utilized the Combined Values Chart, page 604, to combine these impairment 

values and concluded that appellant had 13 percent permanent impairment of the left lower 

extremity. He opined that appellant had reached MMI on July 30, 2019, the date of his 

examination.

On August 13, 2019 OWCP referred the case record to Dr. Harris, the DMA, for a schedule 

award impairment rating. In an August 15, 2019 report, Dr. Harris reviewed the SOAF and 

medical record, including Dr. Mackay’s July 30, 2019 report. He clarified his earlier reports by

utilizing the DBI rating method of the sixth edition of the A.M.A., Guides, and identifying the 

CDX as a class 1 impairment for the diagnosis of tibial plateau fracture under Table 16-3, page 

510. Dr. Harris found that appellant had 13 percent permanent impairment of the lower extremity. 

He noted that a ROM rating was not appropriate under the criteria in Section 16.7, page 543. 

Dr. Harris agreed with Dr. Mackay’s rating of 13 percent permanent impairment of the left lower 

extremity and opined that appellant had reached MMI on July 30, 2019.

By decision dated November 14, 2019, OWCP granted appellant a schedule award for 13 

percent permanent impairment of her left lower extremity. The award ran for 37.44 weeks from 
4

July 30, 2019 through April 17, 2020. OWCP noted that the schedule award was based on the 

impairment ratings of Dr. Mackay and Dr. Harris. 

On November 19, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on March 19, 2020. 

By decision dated June 2, 2020, OWCP’s hearing representative affirmed the

November 14, 2019 decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA,5 and its implementing federal regulations,6 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. However, 

FECA does not specify the manner in which the percentage of loss shall b e 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.7 As of May 1, 2009, the 

sixth edition of the A.M.A., Guidesis used to calculate schedule awards.8 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.9

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: 

A Contemporary Model of Disablement.

10

 Under the sixth edition, the evaluator identifies the 

CDX, which is then adjusted by the GMFH, GMPE, and GMCS.11 The net adjustment formula is 

(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).12 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.13

Section 8123(a) of FECA 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 

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

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

2.808.5(a) (March2017); see alsoChapter 3.700.2 and Exhibit 1 (January 2010).

9

See S.C., Docket No. 20-0769 (issued January 12, 2021); P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro 

Rivera, 12 ECAB 348 (1961).

10 A.M.A., Guides(6th ed. 2009) at 3, section 1.3.

11 Id. at 493-556.

12 Id. at 521.

13 E.W., Docket No. 19-1720 (issued November 25, 2020); R.R., Docket No. 17-1947 (issued December 19, 2018); 

R.V., Docket No. 10-1827 (issued April1, 2011).
5

shall make an examination.14 This is called a referee examination and OWCP will select a 

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

case.15 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 rationalized and based upon a proper factual background, must be 

given special weight.16

ANALYSIS

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

In February 27 and May 20, 2019 reports, Dr. Kennington determined that appellant had 

31 percent permanent impairment of the left lower extremity under the standards of the sixth 

edition of the A.M.A., Guides. Utilizing the DBI rating method, he identified the CDX as a class 

3 impairment for the diagnosis of tibial plateau fracture under Table 16-3, page 510. He assigned 

a GMFH of 1 and a GMPE of 1, and noted that a GMCS was not applicable. Dr. Kennington 

calculated that appellant had a net adjustment of -4, resulting in movement from the default class 

of C to A and corresponding to 31 percent permanent impairment of the left lower extremity. 

In contrast, Dr. Mackay, the second opinion physician, determined in a July 30, 2019 report 

that appellant had 13 percent permanent impairment of the left lower extremity. Utilizing the sixth 

edition of the A.M.A., Guides, he opined that appellant had three percent impairment of the left 

lower extremity due to the medial meniscus condition, five percent impairment due to the tibial 

plateau fracture, and five percent impairment due to degenerative joint disease. Dr. Mackay 

utilized the Combined Values Chart, page 604, to combine these impairment values and concluded

that appellant had 13 percent permanent impairment of the left lower extremity. 

In April 17 and August 15, 2019 reports, Dr. Harris, OWCP’s DMA, opined that appellant 

had 13 percent permanent impairment of the left lower extremity. Dr. Harris utilized the DBI 

rating method under the sixth edition of the A.M.A., Guides and identified the CDX as a class 1

impairment for the diagnosis of tibial plateau fracture under Table 16-3 (Knee Regional Grid), 

page 510.

The Board thus finds that there is a conflict in the medical opinion evidence between the 

opinions of Dr. Kennington, appellant’s attending physician, and Drs. Mackay and Harris, 

OWCP’s second opinion physician and DMA, regarding the nature and extent of appellant’s left 

lower extremity permanent impairment.

Because there remains an unresolved conflict in the medical opinion evidence regarding 

appellant’s left lower extremity permanent impairment, pursuant to 5 U.S.C. § 8123(a), the case 

will be remanded to OWCP for referral of appellant, together with the case record and a SOAF, to 

14 5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August26, 2020); M.S., 58 ECAB 328 (2007).

15 20 C.F.R. § 10.321; see also R.C., 58 ECAB 238 (2006).

16 P.B., Docket No. 20-0984 (issued November 25, 2020); Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. 

Godfrey, 52 ECAB 486 (2001).
6

an appropriate specialist for an impartial medical examination to resolve the conflict.17 Following 

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

regarding appellant’s permanent impairment.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the June 2, 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: December 12, 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

17 See id.