United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Denver, CO, Employer

__________________________________________

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Docket No. 23-0804

Issued: January 2, 2024

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On May 12, 2023 appellant filed a timely appeal from a December 13, 2022 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

ISSUE

The issue is whether appellant has met her burden of proof to establish more than 11 percent 

permanent impairment of the right upper extremity (arm), 6 percent permanent impairment of the 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the December 13, 2022 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

left lower extremity (leg), and/or 7 percent permanent impairment of the right lower extremity

(leg), for which she received schedule award compensation.

FACTUAL HISTORY

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

circumstances of the case as set forth in the Board’s prior decision are incorporated herein by 

reference. The relevant facts are as follows.

On March 4, 2003 appellant, then a 47-year-old casual laborer/custodian, filed a claim for 

a traumatic injury (Form CA-1) occurring on February 24, 2003 while in the performance of duty. 

She stopped work on February 28, 2003 and returned to limited-duty work on March 3, 2003. 

OWCP accepted the claim for right trapezius strain, right knee sprain, bilateral foot/ankle sprains, 

and bilateral forearm strain. It subsequently expanded its acceptance of the claim to include 

depressive disorder and right patella chondromalacia. 

A March 22, 2003 magnetic resonance imaging (MRI) scan of the right knee revealed 

osteoarthritis in the medial and lateral joint space with no evidence of a ligamentous, meniscal, or 

bone injury. 

On November 28, 2003 Dr. Frederick F. Teal, III, a Board-certified orthopedic surgeon, 

performed arthroscopic surgery on appellant’s right knee for stage 4 chondromalacia of the right 

patella with fibrous medial plica. He noted that she had “stage 3 and stage 4 chondromalacia 

changes of the patella.”

In an April 21, 2004 impairment evaluation, Dr. Gareth E. Shemesh, a Board-certified 

physiatrist, opined that appellant had obtained maximum medical improvement (MMI). He 

diagnosed right knee pain secondary to stage III-IV chondromalacia, patellofemoral disease, loss 

of right knee motion, and proximal right lower extremity weakness. Dr. Shemesh found 41 percent 

permanent impairment of the lower extremity under the fifth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4

An October 2, 2006 MRI scan of the right shoulderrevealed tendinosis/tendinopathy of the 

rotator cuff, subacromial bursitis with degenerative changes of the acromioclavicular (AC) joint 

with a possible acute AC joint injury superimposed on chronic degenerative changes. 

Results from an MRI scan of the left ankle, obtained on May 24, 2014, included pes planus 

with mild distal tendinitis and flexor tenosynovitis without partial or full-thickness posterior 

tibialis tendon tear, a mild sprain of the spring ligament, a mild lateral sinus tarsitis, and small 

ankle joint effusion.

OWCP paid appellant wage-loss compensation for total disability on the supplemental rolls 

effective November 23, 2003, and on the periodic rolls effective October 31, 2004. By decision 

3 Docket No. 07-1286 (issued April 14, 2008).

4 A.M.A., Guides (5th ed. 2001).
3

dated April 14, 2006, it reduced her wage-loss compensation effective April 16, 2006 based on its 

finding that she had the capacity to earn wages in the constructed position of a part-time accounting 

clerk.5 OWCP continued to pay appellant wage-loss compensation on the periodic rolls based on 

her loss of wage-earning capacity. 

On August 23, 2022 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. 

In a development letter dated August 24, 2022, OWCP requested that appellant provide an 

impairment evaluation from her treating physician addressing whether she had reached MMI and 

utilizing the sixth edition of the A.M.A., Guides.

6

It afforded her 30 days to submit the requested 

information.

On October 14, 2022 OWCP referred appellant to Dr. John J. Aschberger, a Boardcertified physiatrist, for a second opinion examination. 

In a report dated November 7, 2022, Dr. Aschberger provided his review of the evidence 

of record, including the results of diagnostic studies. He diagnosed right knee pain with 

degenerative change and patellofemoral chondromalacia, right shoulder pain, bilateral forearm 

pain, bilateral foot/ankle sprains, and right patella chondromalacia. On examination,

Dr. Aschberger indicated that he had measured range of motion (ROM) three times and found 

maximum motion for the left ankle of 40 degrees plantarflexion, 0 degrees dorsiflexion, 10 degrees 

inversion, and 30 degrees eversion. For the right ankle, he measured 40 degrees plantarflexion, 5 

degrees dorsiflexion, 20 degrees inversion, and 10 degrees eversion. Dr. Aschberger found 130 

degrees flexion of the right knee in full extension with joint line tenderness, but no swelling or 

erythema. He further found normal ROM of the left shoulder and, for the right shoulder, 140 

degrees abduction, which yielded three percent impairment, 25 degrees adduction which yielded 

one percent impairment, 140 degrees flexion, which yielded three percent impairment, 70 degrees 

internal rotation, which yielded two percent impairment, and 40 degrees extension and 90 degrees 

external rotation, which he found yielded no impairment. Dr. Aschberger added the loss of ROM 

of the right shoulder to find nine percent permanent impairment of the right upper extremity.

Referencing the A.M.A., Guides, Dr. Aschberger found that appellant had no impairment 

due to her trapezius strain. He identified the class of diagnosis (CDX) for the right shoulder as 

acromioclavicular (AC) joint injury or disease with a Class1 impairment, which yielded a default 

value of three percent under Table 15-5 on page 403. Dr. Aschberger applied a grade modifier for 

functional history (GMFH) of one, a grade modifier for physical examination (GMPE) of two, and 

a grade modifier for clinical studies of two, to find an adjustment of two and five percent right 

upper extremity impairment. 

Dr. Aschberger found no ankle impairment by imaging studies, but 11 percent right lower 

extremity impairment and 9 percent left lower extremity impairment due to loss of ROM. For the 

CDX for right knee chondromalacia, he identified a Class 1 impairment, which yielded a default 

5 By decision dated January 10, 2007, an OWCP hearing representative affirmed the April 14, 2006 decision. 

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

value of 10 percent based on imaging studies and operative findings. Dr. Aschberger applied a 

GMFH, GMPE, and GMCS of 2, to find 13 percent permanent impairment of the right lower 

extremity. He found no impairment due to loss of ROM of the right knee.

On November 24, 2022 Dr. Herbert White, Jr., a Board-certified occupational medicine 

specialist serving as a district medical adviser (DMA), applied the provisions of the A.M.A., 

Guides to Dr. Aschberger’s findings. Using the diagnosis-based impairment (DBI) method, for 

the right shoulder, he identified the CDX as Class 1 tendinitis with residual functional loss 

according to Table 15-5 on page 402. Dr. White applied a GMFH of two for pain with normal 

activity, a GMPE of one for a mild motion deficit, and a GMCS of one for bursitis, noting that he 

did not rate the tendinitis as it was used for placement. Utilizing the net adjustment formula, he 

found an adjustment of one and four percent right upper extremity impairment. Dr. White next 

rated appellant’s shoulder impairment using the ROM method. Using Table 15-34 on page 475, 

he found 140 degrees flexion yielded 3 percent impairment, 40 degrees extension yielded 1 percent 

impairment, 140 degrees abduction yielded 3 percent impairment, 30 degrees adduction yielded 1 

percent impairment, 70 degrees internal rotational yielded 2 percent impairment, and 90 degrees 

external rotation yielded no impairment, which he added to find 10 percent right upper extremity 

impairment. Dr. White applied grade modifiers and found 11 percent right upper extremity 

impairment due to loss of ROM. As this yielded a greater impairment than the DBI method, he 

found that appellant’s right upper extremity impairment should be based on loss of ROM.

For the right knee, Dr. White identified the CDX as a Class 1 impairment for patellofemoral 

arthritis using Table 16-3 on page 511 of the A.M.A., Guides, which yielded a default value of 

three percent. He applied a GMFH of two for an antalgic gait/assistive device, a GMPE of two for 

moderate tenderness, and found that a GMCS was not applicable as there were no studiesto review 

at MMI. Dr. White applied the net adjustment formula and found that the grade increased by two, 

for a five percent right lower extremity impairment. He noted that an impairment using the ROM 

method was not provided as an alternative method for the diagnosis under the A.M.A., Guides.

Dr. White identified the CDX for the right ankle strain -- all other tendons according to 

Table 16-2 on page 501 of the A.M.A., Guides, as a Class 1 impairment, which yielded a default 

value of two percent. He found that a GMFH was excluded pursuant to page 516 of the A.M.A., 

Guides as it was used to rate the impairment of the knee, the highest DBI impairment of the 

extremity. Dr. White further determined that a GMPE was excluded as motion was used for tier 

placement, and a GMCS was not applicable as there were no studies at MMI to review, which 

yielded no change from the default value of two percent after application of the net adjustment 

formula. He combined the five percent lower extremity impairment for the right knee with the 

two percent lower extremity impairment for the right ankle to find seven percent permanent 

impairment of the right lower extremity.

Using Table 16-2 on page 501, Dr. White identified the CDX for the left ankle strain of the 

posterior tibial tendon with a mild motion deficit, as a Class 1 impairment, which yielded a default 

value of five percent. He applied a GMFH of two and found a GMPE not appliable as it was used 

for tier placement and GMCS not appliable it was used for diagnostic placement and there were 

no studies at MMI to review. Dr. White utilized the net adjustment formula to find an adjustment 

of one place and six percent permanent impairment of the left lower extremity. He noted that the 
5

A.M.A., Guides did not provide ROM as an alternate rating method for the ankle, hindfoot, or 

knee.

Dr. White advised that Dr. Aschberger found a right upper extremity impairment due to 

loss of ROM of 9 percent instead of 11 percent as he erroneously found that 40 degrees extension 

constituted no impairment instead of 1 percent impairment, and further failed to apply a GMFH. 

He related that he was unable to determine how Dr. Aschberger found a right lower extremity 

impairment of 13 percent. Dr. White noted that Dr. Aschberger inappropriately rated appellant’s 

ankle impairment using the ROM method. He found that she had reached MMI on 

November 7, 2022.

By decision dated December 13, 2022, OWCP granted appellant a schedule award for 11 

percent permanent impairment of the right upper extremity (right arm), 6 percent permanent 

impairment of the left lower extremity (left leg), and 7 percent permanent impairment of the right 

lower extremity (right leg). The period of the award ran for 71.76 weeks. OWCP noted that it had 

adjusted the starting date of the schedule award to December 4, 2022 as appellant had received 

disability compensation through December 3, 2022.

LEGAL PRECEDENT

The schedule award provision of FECA,7 and its implementing federal regulation,8 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 2009.9 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.10

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 (ICF).

11

 Under the sixth edition, the evaluator identifies the impairment CDX, which 

7

Supra note 1.

8

20 C.F.R. § 10.404.

9 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 Awards and Permanent Disability Claims, 

Chapter 2.808.6 (March 2017); see also Part 3 --Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

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

11 A.M.A., Guides (6th ed. 2009), p.3, section 1.3.
6

is then adjusted by GMFH, GMPE) and GMCS.12 The net adjustment formula is (GMFH - CDX) 

+ (GMPE - CDX) + (GMCS - CDX).13 Evaluators are directed to provide reasons for their 

impairment choices, including the choices of diagnoses from regional grids and calculations of 

modifier scores.14

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish more than 11 

percent permanent impairment of the right upper extremity (arm), 6 percent permanent impairment 

of the left lower extremity (leg), and/or 7 percent permanent impairment of the right lower 

extremity (leg), for which she previously received schedule award compensation.

Regarding appellant’s right upper extremity impairment, Dr. Aschberger found that 

appellant had 3 percent impairment for 140 degrees abduction, 1 percent impairment for 25 degrees 

adduction, 3 percent impairment for 140 degrees flexion, 2 percent impairment for 2 degrees 

internal rotation, and no impairment for 40 degrees extension and 90 degrees exte rnal rotation, 

which yielded a total right upper extremity impairment of 9 percent. However, as noted by the 

DMA, 40 degrees extension constituted one percent permanent impairment under Table 15-34 of 

the A.M.A., Guides. Dr. Ashberger also rated appellant’s shoulder impairment using the DBI 

method and found that appellant had five percent permanent impairment of the right shoulder for 

Class 1 AC joint arthritis using Table 55 on page 403 of the A.M.A., Guides after the application 

of grade modifiers. 

For the right knee, Dr. Aschberger identified the CDX as a Class 1 impairment for arthritis

with a two-millimeter cartilage interval, which he found yielded a default value of 10 percent using 

Table 16-3 on page 511. He applied a GMFH, GMPE, and GMCS of 2, which yielded 13 percent 

permanent impairment of the right lower extremity. Dr. Aschberger found no impairment of the 

right knee due to loss of ROM. He did not, however, explain, with reference to specific x-rays or 

diagnostic studies, how he determined that appellant had two-millimeter of cartilage interval.

Dr. Aschberger further found that appellant had no ankle impairment using the DBI method 

but had 11 percent right lower extremity impairment and 9 percent left lower extremity impairment 

due to loss of ROM. However, Table 16-2 does not provide the ROM impairment rating method 

as an alternative to the DBI rating method for appellant’s condition.15

Dr. White, on November 24, 2022, reviewed Dr. Aschberger’s findings. Using the DBI 

method, he identified the CDX for the right shoulder as Class 1 tendinitis using Table 15-5 on page 

502 of the A.M.A., Guides, which yielded a default value of three percent. Dr. White found a 

GMFH of 2 for pain with normal activity, a GMPE of 1 for a mild motion deficit, and a GMCS of 1

12 Id. at 494-531.

13 Id. at 411.

14 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011). 

15 See A.M.A., Guides 501-08, Table 16-2; see also A.K., Docket No. 19-1927 (issued March 31, 2021); A.M., 

Docket No. 18-1061 (issued November 9, 2018).
7

for bursitis, which yielded four percent permanent impairment of the right upper extremity after 

application of the net adjustment formula.16 He concurred with Dr. Aschberger’s impairment 

findings due to loss of ROM of the right shoulder except for extension, noting that 40 degrees 

extension constituted a one percent impairment rather than no impairment. Dr. White further 

found that Dr. Aschberger had not applied a GMFH to the ROM measurements. He concluded 

that appellant had 11 percent permanent impairment of the right upper extremity due to reduced 

ROM of the shoulder. Dr. White opined that ROM should be used to rate appellant’s right upper 

extremity impairment as it provided the greater rating. 

Dr. White reviewed Dr. Aschberger’s findings regarding the right knee and identified the 

CDX as Class 1 patellofemoral arthritis with a full-thickness articular cartilage defect or ununited 

osteochondral fracture, which yielded a default value of three percent. He applied a GMFH and a 

GMPE of two and found that a GMCS was not applicable as there were no clinical studies to 

review at MMI. Dr. White applied the net adjustment formula and found that the grade increased 

by two, for a five percent right lower extremity impairment.17 He noted that an impairment using 

the ROM method was not set forth as an alternative method under the A.M.A., Guides. Dr. White 

advised that it was unclear how Dr. Aschberger had rated appellant’s right knee impairment.

Dr. White further opined that the A.M.A. Guides did not provide ROM as an alternative 

method to rate an impairment of the ankle. He identified the CDX of the right ankle as a Class 1 

strain of all other tendons using Table 16-2 on page 501, which yielded a default value of two 

percent. Dr. White asserted that a GMFH was excluded as it was used to rate the knee impairment, 

which yielded the highest DBI impairment for the extremity. He further found that a GMPE was 

excluded as it was used for tier placement and that a GMCS was not applicable as there were no 

studies at MMI to review. Dr. White thus found no change from the default value of two percent. 

He combined the five percent lower extremity impairment for the right knee with the two percent 

lower extremity impairment for the right ankle to find seven percent permanent impairment of the 

right lower extremity.

For the left ankle, Dr. White identified the CDX as a Class 1 strain of the posterior tibial 

tendon with a mild motion deficit, for a default value of five percent. He applied a GMFH of two. 

Dr. White further determined that a GMPE not applicable as it was used for tier placement and 

GMCS not appliable it was used for diagnostic placement and as there were no studies at MMI to 

review. He utilized the net adjustment formula to find an adjustment of one, or six percent 

permanent impairment of the left lower extremity.18

The Board finds that OWCP properly determined that appellant had not established greater 

than 11 percent permanent impairment of the right upper extremity (arm), 6 percent permanent 

impairment of the left lower extremity (leg), and/or 7 percent permanent impairment of the right 

16 Utilizing the net adjustment formula discussed above, (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), or (2-

1) + (1-1) + (1-1) = 1, yielded an adjustment of one.

17 (GMFH-CDX) + (GMPE-CDX), or (2-1) + (2-1) = 2, yielded an adjustment of 2.

18 (GMFH-CDX), or (2-1) = 1, yielded an adjustment of 1.
8

lower extremity (leg), based on the findings of the DMA.19 There is no probative medical evidence 

of record demonstrating greater impairment than that previously awarded. 20

Appellant may request a schedule award or increased schedule award based at any time 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 more than 11 

percent permanent impairment of the right upper extremity (arm), 6 percent permanent impairment 

of the left lower extremity (leg), and/or 7 percent permanent impairment of the right lower 

extremity (leg), for which she received schedule award compensation.

ORDER

IT IS HEREBY ORDERED THAT the December 13, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 2, 2024

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

19 See B.L., Docket No. 22-0068 (issued October 12, 2022); J.S.,Docket No. 19-1567 (issued April 1, 2020);

J.M., Docket No. 18-1334 (issued March 7, 2019).

20 See D.S., Docket No. 20-0670 (issued November 2, 2021); D.F.,Docket No. 17-1474 (issued January 26, 2018);

A.T., Docket No. 16-0738 (issued May 19, 2016).