United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.W., Appellant

and

U.S. POSTAL SERICE, PROCESSING & 

DISTRIBUTION CENTER, Detroit, MI, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 21-0118

Issued: July 7, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 4, 2020 appellant, through counsel, filed a timely appeal from an August 19, 

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.

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 her burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award.

FACTUAL HISTORY

On September 2, 2015 appellant, then a 68-year-old training technician, filed a traumatic 

injury claim (Form CA-1) alleging that on August 31, 2015 she strained her left knee and leg when 

she fell in a hallway while in the performance of duty. She stopped work on August 31, 2015 and 

returned to part-time modified employment on February 1, 2016. OWCP accepted the claim for 

unspecified lateral meniscus derangements of the left knee and left knee sprain.

A September 11, 2015 magnetic resonance imaging (MRI) scan of the left knee 

demonstrated fraying of the lateral and medial meniscus without a discrete tear and edema of the 

anterior cruciate ligament, which was either degenerative or post traumatic.

In a March 22, 2016 report, Dr. Emmanuel Obianwu, a Board-certified orthopedic surgeon

and OWCP referral physician, diagnosed a resolved soft tissue injury of the left knee. He found 

that appellant could return to her date-of-injury employment without restrictions. 

An MRI scan obtained March 22, 2016 revealed near full-thickness cartilage loss and 

subchondral edema within the patellofemoral compartment and intact menisci and ligaments.

On May 18, 2016 Dr. Jeffrey H. DeClaire, a Board-certified orthopedic surgeon, 

performed a left knee chondroplasty of the patellofemoral joint, major synovectomy, and resection 

of fibrotic medial plica. 

In an addendum report dated December 7, 2016, Dr. Obianwu opined that the August 31, 

2015 employment injury had not aggravated or accelerated appellant’s left knee osteoarthritis. He 

further found that the May 18, 2016 surgery was unrelated to the accepted employment injury. 

In a report dated March 2, 2017, Dr. DeClaire opined that appellant’s employment injury 

had permanently accelerated her preexisting knee arthritis. He advised that she was scheduled for 

patellofemoral joint replacement on March 27, 2017 and attributed her need for surgery to her 

employment injury.

OWCP determined that a conflict in medical opinion existed between Dr. Obianwu and

Dr. DeClaire and referred appellant to Dr. Paul Drouillard, an osteopath and Board-certified 

orthopedic surgeon, for an impartial medical examination. It requested that Dr. Drouillard address 

appellant’s current employment-related condition and disability, whether the May 18, 2016 

surgery was necessary and causally related to the accepted employment injury, and whether she 

required continued treatment, including the proposed left knee replacement. 

In a report dated May 22, 2017, Dr. Drouillard diagnosed seven weeks post a left total knee 

arthroplasty due to nonemployment-related degenerative joint disease, right knee degenerative 

joint disease, and narcotic habituation. He found that appellant’s left knee condition had resulted 

from a degenerative condition. Dr. Drouillard opined that she had no residuals from the accepted 
3

August 31, 2015 left knee derangement, which he indicated was “more accurately described as a 

contusion.” He related that appellant’s May 8, 2016 surgery was not warranted and that she had 

undergone a knee replacement due to “[appellant’s] degenerative process.” Dr. Drouillard found 

that she could resume her usual employment.

By decision dated July 26, 2018, OWCP, based on Dr. Drouillard’s opinion, terminated 

appellant’s wage-loss compensation and medical benefits, effective that date, as the weight of the 

evidence established that she had no further employment-related disability or need for further 

medical treatment due to her left knee internal derangement and left knee sprain.

3

On August 1, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. By decision dated January 14, 2019, 

OWCP’s hearing representative affirmed the July 26, 2018 decision.4

In an impairment evaluation dated May 23, 2019, Dr. Sami E. Moufawad, a Boardcertified physiatrist, discussed appellant’s history of an August 31, 2015 employment injury and 

subsequent February 2016 knee arthroscopy and March 2017 total knee replacement. Referencing 

the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides),5 he identified the class of diagnosis (CDX) as a total knee 

replacement with a fair result using Table 16-3 on page 511. After applying grade modifiers,

Dr. Moufawad opined that appellant had 31 percent permanent impairment of the left lower 

extremity.

On July 9, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

On August 8, 2019 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as a 

district medical adviser (DMA), diagnosed status post left knee arthroscopic chondroplasty, 

synovectomy, and resection of medial plica on May 18, 2016 and status post left knee arthroplasty 

on March 27, 2017. He concurred with Dr. Moufawad’s finding of 31 percent permanent 

impairment of the left lower extremity.

On September 26, 2019 OWCP requested that Dr. Moufawad provide an addendum report 

clarifying whether appellant had a permanent impairment due to her accepted conditions of left 

knee lateral meniscus derangement and a sprain of the lateral collateral ligament of the left knee. 

It noted that Dr. Drouillard had provided an impartial medical opinion, finding that her knee 

problems that caused her need for surgery were degenerative rather than traumatic in origin. 

OWCP requested that Dr. Moufawad explain whether appellant’s arthritic condition was caused 

or aggravated by her accepted employment injury.

3 The record reflects that the International Classification of Disease (ICD)-10 code was left knee derangement and 

the ICD-9 code was a sprain of the lateral collateral ligament.

4 By decision dated May 30, 2019, OWCP denied appellant’s claims for compensation (Form CA-7) beginning 

May 18, 2019. 

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

In an October 10, 2019 addendum report, Dr. Moufawad advised that appellant had 

preexisting left knee osteoarthritis at the time of her August 31, 2015 employment injury, accepted 

for left knee sprain. He asserted that the employment injury had aggravated and accelerated her 

left knee osteoarthritis and resulted in her need for a total knee replacement. Dr. Moufawad noted 

that, prior to her injury, appellant engaged in dancing, riding a bicycle, and walking. He indicated 

that the sudden loss of her ability to participate in these activities supported that she had sustained 

an aggravation of preexisting degenerative changes due to her August 31, 2015 employment 

injury. Dr. Moufawad reiterated that appellant had 31 percent permanent impairment due to her 

total knee replacement, which was causally related to the August 31, 2015 employment injury.

On January 30, 2020 Dr. Harris maintained that appellant had a 31 percent permanent

impairment of the lower left extremity due to permanent aggravation of the preexisting 

symptomatic arthritis. However, he clarified that appellant had no impairment due to her accepted 

conditions of left knee derangement and a left knee sprain.

By decision dated February 7, 2020, OWCP denied appellant’s schedule award claim.

On February 19, 2020 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on 

June 1, 2020. 

By decision dated August 19, 2020, OWCP’s hearing representative affirmed the 

February 7, 2020 decision.

LEGAL PRECEDENT

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

7 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 

specified edition of the A.M.A., Guides, published in 2009.8 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

6

Supra note 2.

7

20 C.F.R. § 10.404.

8 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 Award and Permanent Disability Claims, 

Chapter 2.808.5(a)(March2017); see alsoid. at Chapter 3.700, Exhibit 1 (January 2010).

9 P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).
5

A schedule award can be paid only for a condition related to an employment injury. The 

claimant has the burden of proving that the condition for which a schedule award is sought is 

causally related to his or her employment.10 For conditions not accepted by OWCP as being 

employment related, it is the employee’s burden to provide rationalized medical evidence 

sufficient to establish causal relation, not OWCP’s burden to disprove such relationship.11

OWCP’s procedures provide that termination of a claim for all benefits due to a finding of 

no residuals of work-related condition does not automatically bar a subsequent schedule award. 

Rather, it should consider the schedule award matter separately from the termination of benefits. 

If a claimant applies for a schedule award after termination, and submits medical evidence 

reflecting permanent impairment as a result of the work-related injury or exposure, OWCP should 

develop the claim further, even if a finding of no residuals has previously been made.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 

case.14 When there exists 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 appellant has not met her burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award.

In support of her claim for a schedule award, appellant submitted a May 23, 2019 

impairment evaluation from Dr. Moufawad, who found that she had 31 percent permanent 

impairment of the left lower extremity due to her total knee replacement, pursuant to Table 16-3 

on page 511 of the A.M.A., Guides. OWCP, however, did not authorize her total knee replacement 

as causally related to her August 31, 2015 employment injury. It accepted appellant’s claim only 

for left knee derangement and a left knee sprain. 

OWCP properly referred the case record to Dr. Harris, the DMA. In an August 8, 2019

report, Dr. Harris diagnosed status post left knee arthroscopic chondroplasty, synovectomy, and 

10 K.B., Docket No. 19-0431 (issued July 1, 2019); Veronica Williams, 56 ECAB 367 (2005).

11 F.E., Docket No. 17-0584 (issued December 18, 2017).

12 See also supranote 8 Chapter 2.808.11 (February2013).

13 5 U.S.C. § 8123(a); K.W., Docket No. 20-0047 (issued November 12, 2020).

14 20 C.F.R. § 10.321.

15 V.H., Docket No. 20-0012 (issued November 5, 2020); GloriaJ. Godfrey, 52 ECAB 486 (2001).
6

resection of medial plica on May 18, 2016 and status post left knee arthroplasty on 

March 27, 2017. He concurred with Dr. Moufawad’s finding of 31 percent permanent impairment 

of the left lower extremity. In a January 30, 2020 supplemental report, Dr. Harris maintained that 

appellant had 31 percent permanent impairment of the lower left extremity due to permanent 

aggravation of the preexisting symptomatic arthritis, but clarified that appellant had no impairment 

due to her accepted conditions of left knee derangement and a left knee sprain. 

Dr. Harris properly applied the appropriate standards of the A.M.A., Guides in finding no 

impairment due to the accepted conditions. As the DMA’s opinion is also detailed, well 

rationalized, and based on a proper factual background, the Board finds that it constitutes the 

weight of the medical evidence. 

As the medical evidence of record is insufficient to establish permanent impairment of a 

scheduled member or function of the body causally related to the accepted employment injury, the 

Board finds that appellant has not met her burden of proof. 

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of a new exposure or medical evidence showing progression of an employment-related 

condition resulting in permanent impairment or increased impairment.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award.
7

ORDER

IT IS HEREBY ORDERED THAT the August 19, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 7, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board