United States Department of Labor

Employees’ Compensation Appeals Board

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R.L., Appellant

and

GOVERNMENT PUBLISHING OFFICE, 

Washington, DC, Employer

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Docket No. 21-1329

Issued: June 24, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 1, 2021 appellant, through counsel, filed a timely appeal from an August 3, 

2021 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.

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 more than two 

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

schedule award.

FACTUAL HISTORY

On June 13, 2016 appellant, then a 41-year-old electrician, filed a traumatic injury claim 

(Form CA-1) alleging that on June 11, 2016 his right knee “bentsideways” when he stepped on

loose flooring, while in the performance of duty. He stopped work on June 14, 2016. OWCP 

accepted the claim for right knee sprain. It later expanded the acceptance of the claim to include 

complex tear of right medial meniscus and sprain of anterior cruciate ligament (ACL), right knee.

On September 1, 2016 appellant underwent surgery for arthroscopic ACL reconstruction with bone 

patella-tendon autograft and partial medial meniscectomy of the right knee. 

In a February 22, 2017 report, Dr. Vincent Rollo, Board-certified in orthopedic sports 

medicine and orthopedic surgery, noted that appellant was seen for follow up of his right knee 

ACL reconstruction approximately six months postsurgery. He found no swelling or deformity 

and noted that appellant related most of his knee pain had resolved and appellant denied any giving 

way of the knee.

On April 25, 2017 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

In an August 28, 2017 report, Dr. Robert Macht, a general surgery specialist, noted 

appellant’s history of injury, medical treatment, and his physical examination findings. He

provided an impairment rating using the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3 Dr. Macht noted that

appellant’s knee was weak, he had stopped kneeling and squatting, and had difficulty going up 

stairs. Appellant occasionally used a brace, but denied use of a cane or crutch. Dr. Macht

examined appellant and found flexion of the right knee limited to 120 degrees, noting that active 

range of motion (ROM) testing was repeated at least three times for accuracy. Appellant had mild 

positive anterior drawer sign and mild rotational instability. Dr. Machtfound that appellant walked 

with a normal gait and that x-rays of the right knee revealed narrowing of the medial joint space 

to 2.6 millimeters. He diagnosed a traumatic injury to the right knee, with medial meniscectomy, 

ACL reconstruction, and joint space arthritic narrowing. Dr. Macht noted that, at the time of 

surgery, appellant had a near complete tear of the ACL and a tear of the medial meniscus,

moderate-to-large knee joint effusion, small Baker’s cyst, and contusion about the posterior, 

medial, and tibial plateau. He related that appellant filled out a lower limb questionnaire, his score 

was 16 out of 100, and this resulted in a grade modifier for functional history (GMFH) of 0 based 

upon Table 16-6, page 516 of the A.M.A., Guides. Dr. Macht noted that he found 2 centimeters 

of atrophy of the right thigh which resulted in a grade modifier for physical examination (GMPE) 

of 2 per Table 16-7, page 517. He explained that the knee regional grid contained multiple 

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

diagnostic criteria for evaluating the knee and that the highest impairment would be the ACL

injury. Dr. Macht referred to Table 16-3, page 510, and found a Class 1 impairment for the Class 

of Diagnosis (CDX) of the knee with mild laxity of the ACL, the GMFH was 1 lower and therefore 

a -1 assignment, the GMPE was 1 higher and, therefore, a +1 assignment, the total was a 0 

adjustment score and, therefore, the default column was used to assign the impairment. He

explained that the clinical studies used to confirm the diagnosis were not used in the assessment 

and, therefore, per Table 16-3, page 510, appellant had 10 percent permanent impairment of the 

right lower extremity. Dr. Macht opined that appellant reached maximum medical improvement

(MMI) on March 13, 2017.

In a December 10, 2017 report, Dr. Jovito Estaris, Board-certified in occupational 

medicine and a district medical adviser (DMA), reviewed Dr. Macht’s August 8, 2017 report,

noted that it was inconsistent with Dr. Rollo’s February 22, 2017 report, and recommended a 

second opinion examination.

On January 10, 2018 OWCP referred appellant for a second opinion examination with

Dr. Stuart Gordon, Board-certified in orthopedic surgery, to clarify the cause and extent of 

appellant’s injury-related impairment.

In a January 25, 2018 report, Dr. Gordonnoted that appellant had objective findings limited 

to scars and a mild half-grade of weakness of the right lower extremity at the knee, versus the left, 

and otherwise had symmetric girth with no atrophy, and full ROM bilaterally. For the medial 

meniscus injury, he referred to the A.M.A., Guides, Table 16-3, page 509, found a Class 1 

impairment for the CDX with GMFH of 1, grade modifier for clinical studies (GMCS) of 1, and

GMPE of 1, resulting in a Grade C, for 2 percent permanent impairment of the right lower 

extremity. Regarding the ACL injury, Dr. Gordon referred to Table 16-3, page 510, and found a 

Class 1 impairment for the CDX, with a GMFH of 1, GMCS of 1, and GMPE of 1, resulting in a 

Grade C for 10 percent impairment of the right lower extremity. He referred to the Combined 

Values Chart and found 12 percent permanent impairment of the right lower extremity.

In a report dated October 5, 2019, Dr. Estaris, the DMA, explained that Dr. Gordon 

improperly applied the A.M.A., Guides, as he based his impairment rating on a combination of the 

ratings for two diagnoses, rather than using the higher of the two ratings. The DMA also noted 

that when Dr. Gordon provided the impairment rating for the ACL injury, he found no evidence 

of laxity, no posterior instability, pivot shift, or Lachman, and intact quadriceps mechanism. He

also noted that Dr. Gordon found that appellant had full ROM bilaterally and, therefore, no 

impairment. The DMA explained that the proper CDX, cruciate ligament injury with no 

instability, was a Class 0 for an impairment value of 0 percent. He also noted that MMI was 

reached on January 25, 2018, the date of the examination by Dr. Gordon, finding that the right 

knee was stable. For the CDX, partial medial meniscectomy, the DMA referred to Table 16-3 

page 509, and found a Class 1 impairment with a default value of 2 percent. He referred to Table 

16-6, page 616, functional history and provided a GMFH of 1 for difficulty with stairs. The DMA 

also referred to Table 16-7, page 517, for physical examination, and provided a GMPE of 1 for

patellofemoral crepitus, full ROM, and no atrophy. He noted that clinical studies were not used 

because the MRI scan of the right knee showed medial meniscus tear. The DMA applied the net 

adjustment formula (GMFH-CDX) + (GMPE-CDX) and found (1-1) + (1-1) = 0, no net 

adjustment, CDX 1, Grade C = 2 percent permanent impairment of the right lower extremity. He
4

explained that, since the ACL rating was 0 and the medial meniscus rating was 2, the higher rating 

for the medial meniscus should be used, and the proper impairment rating was two percent.

By decision dated September 4, 2020, OWCP granted appellant a schedule award for two 

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

period January 25 through March 6, 2018.

On September 16, 2020 appellant, through counsel, requested a telephonic hearing before 

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

On November 4, 2020OWCP’s hearing representative completed a preliminary review and 

determined that the case was not in posture for a hearing because there was a conflict in the medical 

opinion evidence between Dr. Macht and Dr. Gordon regarding appellant’s right knee instability. 

It also explained that the conflict could not be resolved by the DMA and remanded the case for a 

resolution of the conflict. 

On November 13, 2020 OWCP referred appellant, together with an updated SOAF and a 

list of questions, to Dr. Robert Saltzman, a Board-certified orthopedic surgeon, for an impartial 

medical evaluation.

In a January 6, 2021 report, Dr. Saltzman, serving as the impartial medical examiner (IME) 

reviewed appellant’s history of injury and treatment. He noted that appellant had a prior medial 

meniscus tear and other injuries to the right knee and then suffered a rupture of his ACLand further 

tearing of the medial meniscus during the work injury. Dr. Saltzman also noted that appellant

underwent successful surgery and currently had no complaints of instability regarding the knee. 

He further noted that Dr. Rollo did not find any evidence of instability on his examination, nor did

Dr. Gordon. Dr. Saltzman noted that Dr. Macht found atrophy on his evaluation, which was not 

present on the examination five months later by Dr. Gordon, or during the current examination 31⁄2 

years later. He noted that Dr. Rollo indicated that appellant was doing very well at the time of his 

February 22, 2017 examination and that MMI was reached on that date. Regarding the ACL 

injury, Dr. Saltzman referred to Table 16-3, page 510, of the A.M.A., Guides, and found that 

appellant did not have any instability on physical examination and no functional instability with 

his activities. He explained that this warranted a Class 0, for no instability, and 0 percent 

impairmentof the right lower extremity due to the CDX, ACL injury. Regarding the CDX, medial 

meniscus injury, the IME referred to Table 16-3, page 509, and found a Class 1, with GMFH of 1, 

GMCS of 1, and GMPE of 1, resulting in a Grade C or two percent permanent impairment of the 

right lower extremity. Dr. Saltzman explained that, using the higher of the two ratings for the 

diagnosis-based impairments, appellant had two percent right lower extremity permanent

impairment.

By decision dated March 1, 2021, OWCP denied appellant’s claim for an additional award. 

It explained that the medical evidence of record was insufficient to establish greater than the two

percent permanent impairment previously awarded.

On March 8, 2021 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on May 25, 2021. 

During the hearing, he discussed the stability of his knee, noting that it sometimes felt weak, like 
5

it was going to give out, and that it sometimes hyperextended. Appellant also indicated that he 

wore a knee brace intermittently.

By decision dated August 3, 2021, OWCP’s hearing representative affirmed the March 1, 

2021 decision. He accorded the special weight of the medical evidence to the January 6, 2021 

report from Dr. Saltzman, the IME.

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. However, FECA 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 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 has 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

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health: A Contemporary Model of Disablement.

9

 In evaluating lower extremity impairment, 

the sixth edition requires identifying the impairment CDX, which is then adjusted by GMFH, 

GMPE, and GMCS.10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS 

- CDX). Evaluators are directed to provide reasons for their impairment rating choices, including 

the choices of diagnoses from regional grids and calculations of modifier scores.11

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 

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.; see D.C., Docket No. 20-0916 (issued September 14, 2021); see also RonaldR. Kraynak, 53 ECAB 

130 (2001).

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

2.808.5a (March 2017); see also id.Chapter 3.700.2 and Exhibit 1 (January 2010).

8 P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

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

10 Id. at 494-531.

11 See M.P., Docket No. 18-1298 (issued April12, 2019); R.V., Docket No. 10-1827 (issued April1, 2011).
6

specialist) who shall make an examination.12 This is called a referee examination and OWCP will 

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

with the case.13 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.14

ANALYSIS

The Board finds that appellant has not 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.

OWCP properly found a conflict in the medical opinion evidence between Dr. Macht, 

appellant’s attending physician, who found that appellant had residual instability of the right knee, 

and Dr. Gordon, the second opinion physician, who found that appellant had no right knee 

instability. It properly referred appellant to Dr. Saltzman, pursuant to 5 U.S.C. § 8123(a), for an 

impartial medical examination in order to resolve the conflict in medical opinion.

In a January 6, 2021 report, Dr. Saltzman reviewed appellant’s history of injury and 

medical treatment. He noted that appellant had suffered a medial meniscus tear and a rupture of 

his ACL and had undergone successful surgery. Dr. Saltzman found no instability of the right

knee. He also noted that Dr. Rollo did not find any evidence of instability on his examination, nor 

did Dr. Gordon. Dr. Saltzman also found no atrophy and explained that, while Dr. Macht found 

atrophy on his examination, Dr. Gordon did not find atrophy on his examination five months later. 

Regarding the CDX, ACL injury, Dr. Saltzman referred to Table 16-3 on page 510 of the A.M.A.,

Guides, and explained that, because appellant did not have any instability on physical examination 

and no complaints of functional instability with his activities, this warranted a Class 0 for no 

instability, and 0 percent impairment of the right lower extremity. Regarding the CDX, medial 

meniscus injury, he referred to Table 16-3, page 509, and found a Class 1, with functional status

of 1, GMCS of 1, and GMPE of 1, resulting in two percent permanent impairment of the right 

lower extremity. Dr. Saltzman opined that, using the higher of the two ratings, appellant had two

percent right lower extremity impairment.

As noted above, when a case is referred to an IME for the purpose of resolving a conflict,

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

background, must be given special weight.15 Dr. Saltzman’s opinion was based on a proper factual 

12 5 U.S.C. § 8123(a); E.L., Docket No. 20-0944 (issued August 30, 2021); A.E., Docket No. 18-0891 (issued 

January 22, 2019); 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).

13 20 C.F.R. § 10.321; I.L., Docket No. 18-1399 (issued April1, 2019); R.C., 58 ECAB 238 (2006).

14 V.S., Docket No. 19-1792 (issued August4, 2020); A.E., supra note 12; Darlene R. Kennedy, 57 ECAB 414 

(2006); GloriaJ. Godfrey, 52 ECAB 486 (2001).

15 V.H., Docket No. 20-0012 (issued November 5, 2020).
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and medical history and his examination findings. He utilized the A.M.A., Guides and provided a 

well-rationalized explanation for his opinion and the impairment rating. Accordingly, OWCP 

properly accorded special weight to the IME’s report.16

The record contains no other probative, rationalized medical opinion, which supports that 

appellant had a right lower extremity impairment greater than two percent, based upon a proper 

application of the A.M.A., Guides. As such, the Board finds that appellant has not met his burden 

of proof.

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 more than two 

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

schedule award.

16 See R.R., Docket No. 21-0212 (issued November 3, 2021); V.G., Docket No. 19-1728 (issued September 2, 2020);

D.S., Docket No. 18-0336 (issued May 29, 2019); T.C., Docket No. 17-1741 (issued October 9, 2018).
8

ORDER

IT IS HEREBY ORDERED THAT the August 3, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 24, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board