United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.T., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, VA

MEDICAL CENTER, Minneapolis, MN, 

Employer

__________________________________________

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Docket No. 21-1308

Issued: March 30, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 9, 2020 appellant filed a timely appeal from a March 31, 2020 merit decision of 

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

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over

the merits of this case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that following the March31, 2020 decision, OWCP received additional evidence. 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 met her burden of proof to establish more than 23 percent 

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

award.

FACTUAL HISTORY

This case has previously been before the Board on a different issue.3 The facts and 

circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The 

relevant facts are as follows.

On December 9, 2009 appellant, then a 33-year-old pharmacy technician, filed a traumatic 

injury claim (Form CA-1) alleging that on November 10, 2009 she injured her left knee when she 

tripped over a stack of totes. OWCP accepted the claim for left knee strain and authorized left 

kneecap repair/arthroscopic surgery, which was performed on July 26, 2012. It also authorized 

the removal of left support implant, which was performed on February 7, 2014, and total left knee 

arthroplasty, which was performed on January 21, 2015. 

On December 17, 2015 appellant filed a claim for compensation (Form CA-7) for a 

schedule award.

By decision dated February 8, 2016, OWCP granted appellant a schedule award for 23 

percent left lower extremity permanent impairment. The award ran 66.24 weeks for the period 

January 23, 2016 to April 30, 2017 and was based on the impairment rating of Dr. Ann M. Reiner, 

an occupational and environment physician, and the January 14, 2016 report of Dr. David I. 

Krohn, a Board-certified internist, serving as an OWCP district medical adviser (DMA). The 

diagnostic basis for the schedule award was appellant’s total knee replacement. 

By decision dated July 29, 2016, OWCP expanded acceptance of the claim to include left 

leg sprain, left lower leg joint pain, left gait abnormality, closed dislocation of patella, c ramp in 

limb, and venous embolism and thrombosis of deep vessels of the lower extremity.

On December 2, 2019 appellant filed a Form CA-7 claim for an increased schedule award. 

On January 8, 2020 OWCP referred appellant, along with the case record, an updated 

statement of accepted facts (SOAF), and a series of questions to Dr. Chester A. DiLallo, a Boardcertified orthopedic, for a second opinion evaluation regarding permanent impairment of 

appellant’sleft lower extremity. The January 8, 2020 SOAF provided to Dr. DiLallo included past 

treatment modalities and noted that appellant previously received a schedule award for 23 percent 

permanent impairment of the left lower extremity. 

In a report dated February 4, 2020, Dr. DiLallo noted his review of the SOAF and 

appellant’s medical records. He determined that appellant had reached MMI on February 4, 2020. 

Upon examination of the left knee, Dr. DiLallo found a slightly shortened stance on the left side, 

3 Docket No. 18-1620 (issued May 6, 2019). 
3

tenderness in the inferior patella and lateral side of the knee in the collateral ligaments region, no 

effusion, some slight medial instability, and the patella could not be subluxed by manual pressure. 

He also reported full left knee extension and flexion to 120 degrees. Dr. DiLallo referred to the 

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

Guides),4 Knee Regional Grid and noted that, for the left knee, the diagnostic key factor was a 

total knee replacement arthroplasty with a good result (good position, stable, and functional).5 He

noted a grade modifier for functional history (GMFH) of 3 based on a pain disability questionnaire,

which yielded a raw score of 113. Dr. DiLallo found that a grade modifier for clinical studies 

(GMCS) was not applicable and that no other grade modifiers were applicable.

6

 He explained that 

application of the net adjustment formula resulted in a finding of -+1 or grade D, which was the 

equivalent of 25 percent permanent impairment of the left lower extremity.

On February 7, 2020 OWCP referred Dr. DiLallo’s report, the medical record, and SOAF, 

to Dr. David J. Slutsky, a Board-certified orthopedic surgeon serving as a district medical adviser 

(DMA). In a report dated March 21, 2020, Dr. Slutsky noted his disagreement with Dr. DiLallo’s 

impairment rating of 25 percent left lower extremity permanent impairment. Based on his review 

of Dr. DiLallo’s report and SOAF, Dr. Slutsky calculated 21 percent left lower extremity 

permanent impairment. In reaching this determination, he assigned a class of diagnosis (CDX) for 

the diagnosis of total knee replacement with fair or good result of class 2

7

(class 2, default value 

of 25 percent).8 Dr. Slutsky assigned a GMFH of 0 as Dr. DiLallo related that appellant had no 

gait derangement, a grade modifier for physical examination (GMPE) of 2 due to general palpatory 

tenderness and no instability and no GMCS as it was used to define the class of impairment. 9 He 

explained that application of the net adjustment formula resulted in a finding of -2 or grade A, 

which was the equivalent of 21 percent permanent impairment of the left lower extremity. 10 

Dr. DiLallo noted that this was less than her prior impairment rating.

By decision dated March 31, 2020, OWCP denied appellant’s claim for an increased 

schedule award. 

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

5

Id. at 511, Table 16-3.

6

Id. at 516, Table 16-6.

7 Dr. Slutsky noted a class 3 instead of class 2. However, this appears to be a typographical error as he refers the 

midrange of 25 percent. The midrange is 25 percent for a class 2 while the midrange for a class 3 is 37 percent. 

8

Supra note 6.

9

Id. at 516, Table 16-6, 517, Table 16-7, and 519, Table 16-8.

10 Id. at 521.
4

LEGAL PRECEDENT

The schedule award provisions of FECA,

11 and its implementing federal regulations,12 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 membe r 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 2009.13 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.14

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 left knee, the relevant position of the left leg for the present case, 

reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.15 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).16 Evaluators are directed to provide 

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

and calculations of modifier scores.17

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.18

11 5 U.S.C. § 8107.

12 20 C.F.R. § 10.404.

13 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 also id. at Chapter 3.700, Exhibit 1 (January 2010).

14 M.T., Docket No. 21-0169 (issued October 14, 2021); P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro 

Rivera, 12 ECAB 348 (1961).

15 See supra note 5 at 509-11.

16 Id. at 515-22.

17 Id. at 23-28; see D.W., Docket No. 21-0840 (issued November 30, 2021); R.V., Docket No. 10-1827 (issued 

April 1, 2011).

18 See supra note 16at Chapter 2.808.6(f) (March 2017).
5

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish greater than 23 

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

schedule award.

In a February 4, 2020 report, Dr. DiLallo, based upon a review of the medical records, a 

SOAF, and series of questions, diagnosed a total left knee replacement. He provided a permanent 

impairment rating based upon the sixth edition of the A.M.A., Guides. Dr. DiLallo assigned a 

CDX for the diagnosis of total knee replacement with fair or good result of class 2 based on a good 

result and a GMFH of 3 based on a pain disability questionnaire which yielded a raw score of 113. 

He applied the net adjustment formula and calculated 25 percent permanent impairment of the left

lower extremity based upon the DBI methodology.

OWCP referred Dr. DiLallo’s report to the DMA, Dr. Slutsky. In a report dated March 21, 

2021, Dr. Slutsky found 21 percent left lower extremity permanent impairment. He disagreed with

Dr. DiLallo’s finding of 25 percent left lower agreement impairment, which he explained was due 

to the difference in the application of the GMFH. Dr. Slutsky explained that he determined 

appellant GMFH of 0 rather than GMFH 3, as found by Dr. DiLallo, which he explained was based

Dr. DiLallo’s finding of no gait derangement. 

Dr. Slutsky properly reviewed the medical evidence and evaluated appellant’s impairment 

of the left lower extremity in accordance with the A.M.A., Guides, as a GMFH of 0 rather than 

GMFH of 3, based upon no gait derangement. The Board further finds that Table 17-12, cited by

Dr. DiLallo as the basis for finding a GMFH of 3 is inapplicable as it pertains to the pelvis and not 

the knee. 

As there is no medical evidence of record in conformance with the sixth edition of the 

A.M.A., Guides, establishing that appellant has greater impairment than that which was previously 

awarded, 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 permanent impairment.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish greater than 23 

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

schedule award.
6

ORDER

IT IS HEREBY ORDERED THAT the March 31, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 30, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board