United States Department of Labor

Employees’ Compensation Appeals Board

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B.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Ozark, MO, Employer

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Docket No. 20-1490

Issued: June 13, 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, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 7, 2020 appellant filed a timely appeal from an August 3, 2020 merit decision 

of the Office of Workers’Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

1 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of appellant’s oral argument request, it was asserted that oral argument should be granted because the 

August 3, 2020 OWCP decision was based on inaccurate medical and personal information. The Board, in exercising 

its discretion, denies appellant’s request for oral argument because the argument on appeal can adequately be 

addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance 

of a Board decision and not serve a useful purpose. As such, the oral argument request is denied, and this decision is 

based on the case record as submitted to the Board. 
2

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

ISSUE

The issue is whether appellant has met her burden of proof to establish greater than six 

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

schedule award compensation.

FACTUAL HISTORY

On January 21, 2019 appellant, then a 55-year-old assistant rural carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on January 20, 2019 she sustained a left knee when she 

slipped and fell on ice while in the performance of duty. She stopped work on January 20, 2019

and underwent left knee surgery on January 22, 2019.

4

 OWCP accepted appellant’s claim for 

closed fracture of the left patella. It paid appellant wage-loss compensation on the supplemental 

rolls, effective March 7, 2019. 

On September 28, 2019 appellant returned to full-time, modified duty. She voluntarily 

resigned from her position, effective November 20, 2019. 

On January 24, 2020 appellant filed a claim for a schedule award (Form CA-7). 

In a development letter dated January 28, 2020, OWCP requested that appellant’s treating 

physician submit an impairment evaluation report in accordance with the sixth edition of the 

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

Guides).5 It afforded her 30 days to submit additional medical evidence in support of her schedule 

award claim.

Appellant submitted physical therapy treatment notes dated August 27 through 

November 18, 2019. 

In reports dated November 4 and December 23, 2019, Hillary Roberts, a certified physician

assistant, recounted appellant’s complaints of left knee pain. She reviewed appellant’s history of 

injury and noted left knee examination findings of left knee pain and mild tenderness. Ms. Roberts 

2

5 U.S.C. § 8101 et seq.

3 The Board notes that,following the August 3, 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.

4 A January 22, 2019 operative note indicated that appellant underwent an open reduction, internal fixation (ORIF) 

of the left patella fracture. The preoperative diagnosis indicated left-closed displaced patella fracture. 

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

assessed status-post left patellar hardware removal and left knee manipulation and status-post 

ORIF left patella fracture surgery. 

A December 23, 2019 left knee x-ray scan showed postsurgical changes of the patella 

consistent with a healed fracture, fairly well-maintained joint spaces, and maintained bony 

alignment with no acute fracture or dislocation. 

OWCP referred appellant, along with a statement of accepted facts (SOAF) and the medical 

record to Dr. Michael S. Clarke, a Board-certified orthopedic surgeon, for a second opinion 

examination in order to determine whether she had sustained permanent impairment of a scheduled 

member or function of the body due to her accepted January 20, 2019 employment injury in 

accordance with the A.M.A., Guides. In a May 26, 2020 report, Dr. Clarke described the 

January 20, 2019 employment injury and noted the accepted condition of left patella fracture. 

Upon examination of appellant’s left knee, he observed mild patellofemoral crepitation and mild 

tenderness on patellar compression. Range of motion testing revealed full extension and flexion 

was 120 degrees. Dr. Clarke diagnosed healed left patellar fracture. He indicated that appellant 

had reached maximum medical improvement (MMI). Dr. Clarke reported that no range of motion 

impairment was assessed due to normal range of motion of the left knee. He referred to the sixth 

edition of the A.M.A., Guides and utilized the diagnosis-based impairment (DBI) rating method 

to find that, under Table 16-3 (Knee Regional Grid), page 510, the class of diagnosis (CDX) for 

status-post displaced left patella fracture resulted in a class 1 impairment with a default value of 

10 percent for articular surface displaced 3 millimeter (mm) or less. Dr. Clarke assigned a grade 

modifier for functional history (GMFH) of 0 based on no gait derangement. He assigned a grade 

modifier for physical examination (GMPE) of 1 based on a finding of crepitance. Dr. Clarke

assigned a grade modifier for clinical studies (GMCS) of 2. He utilized the net adjustment formula 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (0 - 1) + (1 - 1) + (2 - 1) = 0 and calculated 

that appellant had no adjustment, which resulted in 10 percent left lower extremity permanent 

impairment. 

In a July 18, 2020 report, Dr. Jovito B. Estaris, a Board-certified occupational and physical 

medicine specialist, serving as DMA, reviewed the medical record, includingDr. Clarke’s May 26, 

2020 second opinion report, and noted that appellant’s claim was accepted for closed fracture of 

the patellar. He reviewed the medical record and indicated that a left knee x-ray scan showed a 

healed fracture patella with alignment well-maintained. Dr. Estarisreferred to the A.M.A., Guides 

and utilized the DBI rating method to find that, under Table 16-3 (Knee Regional Grid), page 510, 

the CDX for fracture of patella was class 1, which was a default value of seven, for nondisplaced 

with abnormal examination findings. He assigned a GMFH of 0 for normal gait and a GMPE of 

1 for mild tenderness and crepitus. Dr. Estaris explained that GMCS was not applicable as x-ray 

scans were used to establish the diagnosis and proper placement in the regional grid. He calculated 

that the net adjustmentformula resulted in -1, which resulted in a grade B or six percent permanent 

impairment of the left lower extremity. Dr. Estaris also utilized the ROM rating method and 

referenced Table 16-23 (Knee Motion Impairments), page 549, to find zero percent permanent 

impairment for 120 degrees flexion and zero percent permanent impairment for 0 degrees 

extension. He concluded that, because the DBI method impairment rating was higher, appellant 

had six percent permanent impairment of the left lower extremity. Dr. Estaris reported a date of 

MMI of May 26, 2020. He explained that he disagreed with Dr. Clarke’s CDX assignment 

because left knee x-ray scan taken after appellant’s left knee surgery showed healed patella fracture 
4

with well-maintained and near anatomic alignment. Dr. Estaris also reported that Dr. Clarke 

should not have assigned a GMCS grade modifier because clinical studies were used for class 

placement. 

By decision dated August 3, 2020, OWCP granted appellant a schedule award for six 

percent permanent impairment of the left lower extremity. The award ran for 17.28 weeks from 

May 26 to September 23, 2020, based on the opinion of the DMA. 

LEGAL PRECEDENT

The schedule award provision of FECA6 and its implementing regulations7 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.8 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used 

to calculate schedule awards.9

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 509.10 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).11 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.12

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to OWCP’s DMA for an opinion concerning the nature and percentage of 

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

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

139 (2002). 

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

2.808.5(a) (March 2017); see also Part 3 --Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

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

11 Id. at 515-22.

12 Id. at 23-28.
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impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the 

percentage of impairment specified.13 

ANALYSIS

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

On January 24, 2020 appellant filed a claim for a schedule award. OWCP subsequently 

referred appellant for a second opinion examination. In a May 26, 2020 second opinion report,

Dr. Clarke utilized the DBI rating method and determined that under Table 16-3 (Knee Regional 

Grid) of the A.M.A, Guides, appellant had a CDX of class 1 with a default value of 10 percent 

permanent impairment for articular surface displaced 3 mm or less. He assigned a GMFH of 0, a 

GMPE of 1, and a GMCS of 2. After applying the net adjustment formula, Dr. Clarke calculated 

that appellant had no net adjustment, which resulted in 10 percent left lower extremity permanent 

impairment. 

In accordance with its procedures, OWCP forwarded Dr. Clarke’s second opinion report 

and the medical record to Dr. Estaris, a DMA, for review. In a July 18, 2020 report, Dr. Estaris

utilized the DBI rating method, and determined that, under Table 16-3 (Knee Regional Grid), 

appellant had a CDX of class 1 with a default value of seven percent permanent impairment for 

abnormal examination findings. Dr. Clarke assigned a GMFH of 0 and a GMPE of 1. He indicated 

that he did not utilize a grade modifier for clinical studies because x-ray scans were used to 

establish the proper class placement. Dr. Estaris applied the net adjustment formula, which 

resulted in -1, for a total of six percent left lower extremity permanent impairment. 

OWCP’s procedures provide that if there was a second opinion examination, and the DMA 

provides a detailed and rationalized opinion in accordance with the A.M.A., Guides, but does not 

concur with the second opinion doctor’s impairment rating, the claims examiner should seek 

clarification or a supplemental report from the second opinion examiner. 14 After receiving 

clarification, the claims examiner should refer the case back to the DMA for review. 15 In this case,

Dr. Clarke, the second opinion examiner, determined in a May 26, 2020 report that appellant had 

10 percent left lower extremity permanent impairment. Dr. Estaris, serving as the DMA, 

calculated that appellant had six percent left lower extremity permanent impairment. Both 

physicians referenced appropriate tables in the A.M.A., Guides and explained how they applied 

the provisions of the A.M.A., Guides when calculating permanent impairment. Despite their

disagreement, OWCP, however, failed to follow its procedures and seek clarification from

Dr. Clarke regarding his impairment rating. 

The Board, therefore,finds that the case must be remanded for OWCP to seek clarification 

and obtain a supplemental report from Dr. Clarke regarding the degree of appellant’s left lower 

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

Chapter 2.808.6(f) (March 2017). R.M., Docket No. 18-1313 (issued April11, 2019); C.K., Docket No. 09-2371 

(issued August 18, 2010).

14 Federal (FECA)Procedure Manual, id. at Chapter 2.808.6(f)(2) (March 2017). 

15 Id. 
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extremity permanent impairment.

16

 On remand OWCP should request that Dr. Clarke address 

whether he agrees or disagrees with Dr. Estaris’ impairment ratingand support his conclusion with 

medical rationale. After this and other such further development as deemed necessary, OWCP 

shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the August 3, 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: June 13, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

16 See C.C., Docket No. 19-0467 (issued August 7, 2019).