United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.P., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Boston, MA, 

Employer

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Docket No. 21-1363

Issued: May 3, 2022

Appearances: Case Submitted on the Record

Daniel 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 September 16, 2021 appellant, through her representative, filed a timely appeal from a 

July 2, 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.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 appellant submitted additional evidence on appeal. 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 31

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

schedule award.

FACTUAL HISTORY

On January 23, 2015 appellant, then a 60-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she injured her left knee when she attempted to load 

a heavy cage full of letter trays onto a truck while in the performance of duty. She stopped work 

on that date. By decision dated April 29, 2015, OWCP accepted appellant’s claim for left knee 

sprain. It subsequently expanded the acceptance of her claim on July 10, 2015 to include 

permanent aggravation of preexisting left knee osteoarthritis. OWCP paid appellant wage-loss 

compensation on the supplemental rolls effective March 11, 2015 and on the periodic rolls, 

effective June 28, 2015. 

The record reflects that appellant underwent OWCP-approved left total knee replacement 

surgery on October 7, 2016 performed by Dr. Ira K. Evans, a Board-certified orthopedic surgeon. 

The operative report noted a preoperative diagnosis of left knee end-stage tricompartmental 

osteoarthritis. 

On June 16, 2018 appellant returned to full-time modified-duty work. 

On February 4, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. 

Appellant submitted a January 14, 2020 impairment evaluation report from Dr. Suzanne 

Miller, a Board-certified orthopedic surgeon. Dr. Miller reviewed appellant’s medical records and 

noted that appellant underwent total left knee replacement surgery in October 2016. On physical 

examination, she observed an antalgic gait. Dr. Miller reported that appellant had left knee range 

of motion (ROM) from 0 to 83 degrees and was quite painful. She referred to the sixth edition of 

the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides)

4 and utilized the diagnosis-based impairment (DBI) rating method to find that, under 

Table 16-3 (Knee Regional Grid), page 511, the class of diagnosis (CDX) for a total knee 

prosthesis resulted in a default value of 37 percent based on mild motion deficit. Dr. Miller 

reported that grade modifiers provided zero adjustment. She opined that appellant reached 

maximum medical improvement (MMI) on that date. 

On February 27, 2020 OWCP forwarded Dr. Miller’s report, the medical record, and 

statement of accepted facts (SOAF) to Dr. Herbert White, Jr., a Board-certified preventive and 

occupational medicine physician, to serve as a district medical adviser (DMA). In a March 12, 

2020 report, Dr. White reviewed the SOAF and medical record. He opined that, under the DBI 

rating method, Table 16-3 (Knee Regional Grid), page 511, appellant was a class 3 for a CDX of 

total knee replacement due to fair result and mild motion deficit. Dr. White assigned a grade 

modifier for functional history (GMFH) of 1 due to an antalgic gait and a grade modifier for 

physical examination (GMPE) of 1 due to mild motion deficits. He found that a grade modifier 

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

for clinical studies (GMCS) was excluded since that there were no clinical studies to review. 

Dr. White applied the net adjustment formula, (GMFH – CDX) + (GMPE – CDX), (1 – 3) + (1 –

3) = -4, which resulted in a of 31 percent permanent impairment of the left lower extremity. He

also determined that, under the ROM method, Table 16-23, page 549, appellant had 10 percent 

permanent impairment of the left lower extremity. Dr. White reported that, since the DBI rating 

method resulted in the higher impairment rating of 31 percent, the DBI rating method should be 

used. He noted a date of MMI of January 14, 2020. 

In a March 25, 2020 letter, Dr. Miller indicated that she had reviewed Dr. White’s 

March 12, 2020 report and noted her disagreement with Dr. White’s assessment of a GMFH of 1. 

She explained that appellant had a GMFH of 2 based on the American Academy of Orthopedic 

Surgery (AAOS) Lower Limb Questionnaire, which showed a moderate deficit. Dr. Miller also 

reported that a GMPE should not be used since mild motion deficit was the basis for the class 3 

selection. 

In an April 10, 2020 report, Dr. White noted his disagreementwith Dr. Miller’s assignment 

of a GMFH of 2. He indicated that Dr. Miller did not indicate that she performed an AAOS Lower 

Limb Questionnaire and the results were not in her report. Dr. White also asserted that a GMPE 

of 1 was applicable due to findings of pain on ROM. He explained that, while mild motion deficit 

was used for class placement, other physical findings could be used to rate GMPE. 

By decision dated December 23, 2020, OWCP granted appellant a schedule award for 31

percent permanent impairment of the left lower extremity. The award ran for 89.28 weeks from 

January 14, 2020 through September 29, 2021. 

On April 19, 2021 appellant, through counsel, requested reconsideration. Counsel argued 

that GMPE and GMFH should be excluded from the net adjustment process because they were 

unreliable. He noted that Dr. White assigned a GMPE of 1 based on “pain in motion,” but under 

Table 16-7, page 517, “pain in motion” was not a factor to be considered. Counsel also contended 

that, according to the A.M.A., Guides, if there are multiple components to a grade modifier, the 

evaluator should choose the grade modifier with the highest value associated with the diagnosis 

being rated. He asserted that since Dr. Miller assigned a GMFH of 2 based on a completed AAOS 

Lower Limb Questionnaire, the higher-grade modifier should be used. Counsel further explained 

that since the GMFH differed by 2 or more grades from physical examination or clinical studies, 

then they should be determined to be unreliable and excluded from the grading process. Lastly, 

he argued that, since Dr. Miller’s calculations yielded the higher impairment rating, OWCP should 

have granted a schedule award based on the higher impairment rating of 37 percent permanent 

impairment of the left lower extremity. 

By decision dated July 2, 2021, OWCP denied modification of the December 23, 2020 

decision.
4

LEGAL PRECEDENT

The schedule award provisions of FECA5 and its implementing regulations6 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.7 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used 

to calculate schedule awards.8

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 knee, the relevant portion of the leg for the present case, reference 

is made to Table 16-3 (Knee Regional Grid) beginning on page 509.9 After the CDX is determined 

from the Knee Regional Grid (including identification of a default grade value), the Net 

Adjustment Formula is applied using GMFH, GMPE, and GMCS. The Net Adjustment Formula

is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10 Under Chapter 2.3, evaluators are 

directed to provide reasons for their impairment rating choices, including choices of diagnoses 

from regional grids and calculations of modifier scores.11

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 

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

providing rationale for the percentage of impairment specified.12

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

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or impartial medical specialist) who shall 

make an examination.13 This is called an impartial medical examination and OWCP will select a 

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

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404 (a); see also T.T., Docket No. 18-1622 (issued May 14, 2019); Jacqueline S. Harris, 54 ECAB 

139 (2002). 

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

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

9

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

10 Id. at 515-22.

11 Id. at 23-28.

12 Supra note 8 at Chapter 2.808.6(f)(March2017). 

13 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).
5

case.14 When there exist opposing medical 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.15 

ANALYSIS

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

In support of her schedule award claim, appellant submitted reports dated January 14 and 

March 25, 2020 from her treating physician, Dr. Miller, who determined that, under Table 16-3, 

page 511, of the A.M.A., Guides, appellant had a default value of 37 percent permanent 

impairment for a total knee prosthesis in a good position and mild motion deficit. Dr. Miller 

assigned a GMFH of 2 based on appellant’s AAOS Lower Limb Questionnaire, which showed a

moderate deficit. She reported that a GMPE was not applicable since it was the basis for the class 

selection and a GMCS was not applicable because studies were not available for review. Dr. Miller 

explained that,since the GMFH differed by 2 or more grades from physical examination or clinical 

studies, they should be excluded from the grading process. As appellant had no net adjustment,

Dr. Miller concluded that she had a final impairment rating of 37 percent permanent impairment

of the left lower extremity.

In reports dated March 12 and April 10, 2020, Dr. White, the DMA, found that appellant 

had 31 percent permanent impairment of the left lower extremity. He noted that she was a class 3 

for a CDX of total knee replacement under Table 16-3 due to fair result and mild motion deficit. 

Dr. White assigned a GMFH of 1 due to antalgic gait and a GMPE of 1 due to mild motion deficits

and pain on ROM. After applying the net adjustment formula, which resulted in -4, he calculated 

that appellant had 31 percent permanent impairment of the left lower extremity. 

As Dr. Miller, appellant’s attending physician, and Dr. White, an OWCP DMA, disagree 

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

Board finds that a conflict in medical opinion exists.16 While both physicians properly utilized 

Table 16-3, Knee Regional Grid, of the A.M.A., Guides for the diagnosis of total knee replacement, 

they differed on the proper grade modifiers for functional history and physical examination. As 

noted above, if there is a disagreement between the employee’s physician and an OWCP physician, 

OWCP shall appoint a third physician, known as a referee physician or impartial medical 

specialist, who shall make an examination.17 Because the reports of Dr. Miller and Dr. White 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 her left lower extremity.18

14 20 C.F.R. § 10.321.

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

16 See L.E., Docket No. 20-1505 (issued June 7, 2021); see also C.B., Docket No. 20-0258 (issued 

November 2, 2020).

17 Supra note 13.

18 D.W., Docket No. 21-840 (issued November 30, 2021); M.M., Docket No. 18-0235 (issued September 10, 2019).
6

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

appropriate specialist for an impartial medical evaluation for a rating of permanent impairment in 

accordance with the sixth edition of the A.M.A., Guides. After this and other such further 

development as deemed necessary, OWCP shall issue a de novo decision regarding her additional 

schedule award claim.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the July 2, 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: May 3, 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