United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.E., Appellant

and

DEPARTMENT OF THE AIR FORCE, KELLY 

AIR FORCE BASE, San Antonio, TX, Employer

__________________________________________

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Docket No. 22-1197

Issued: May 2, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 8, 2022 appellant filed a timely appeal from a June 14, 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

1

5 U.S.C. § 8101 et seq.

2 The Board notes that following the June14, 2022 merit 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 has met his burden of proof to establish greater than 69 

percent permanent impairment of the left lower extremity, for which he previously received 

schedule award compensation.

FACTUAL HISTORY

On January 30, 1997 appellant, then a 41-year-old air craft engine mechanic, filed a 

traumatic injury claim (Form CA-1) alleging that on that date he was working with a hydraulic 

wrench and heater when he sustained an electrical shock in the left arm and was knocked 

approximately six feet backward, while in the performance of duty.

OWCP accepted the claim for electrocution and nonfatal effects of electric shock, bilateral

knee tears of the medial meniscus, hypertension, bilateral lateral epicondylitis, left sensorineural 

hearing loss, bilateral carpal tunnel syndrome, epistaxis, other disease of nasal cavity and sinuses,

hemorrhage complicating a procedure, benign neoplasm of the lymph nodes, right plantar 

fibromatosis, and right lower leg primary osteoarthritis.

Appellant underwent a left knee medial compartment replacement on November 28, 2016.

OWCP granted appellant schedule awards for permanent impairment of his left lower 

extremity. On June 19, 2003 itgranted him a schedule award for 16 percent permanent impairment 

of the left lower extremity. On November 7, 2005 OWCP granted appellant a schedule award for 

an additional four percent permanent impairment of the left lower extremity. On November 14, 

2013 it granted him a schedule award for an additional six percent permanent impairment of the 

left lower extremity. On August 31, 2017 OWCP granted appellant a schedule award for an 

additional 43 percent permanent impairment of the left lower extremity, for a total of 69 percent 

permanent impairment.

In a May 19, 2022 report, Dr. Yury Sless, Board-certified in orthopedic surgery, noted

appellant’s history of injury and medical treatment. He related that appellant presented with a left 

knee brace, ambulated an assistive device, had an antalgic limp, and difficulty rising from a seated 

position and getting on and off the examination table. Dr. Sless noted well-healed surgical scars.

He found mild tenderness upon palpation mid-thigh, moderate tenderness distal thigh and lower

leg, and anterior and posterior left knee severe tenderness. Dr. Sless found deep tendon reflexes 

of the patella were 2+ and Achilles were +1 bilaterally. He performed manual muscle testing of 

the knees bilaterally and found flexion 5/5 5/5, and extension 5/5 5/5. For orthopedic testing,

Dr. Sless found valgus/varus (-) and antepost drawer (-). For range of motion (ROM), he found 

right and leftflexion 108, 106, 110 and73, 75, 75, and extension 0, 0, 0 and -18, -20, -20. Dr. Sless

opined that appellant reached maximum medical improvement (MMI) on May 19, 2022.

Dr. Sless completed a permanent impairment rating pursuant to the sixth edition of the 

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

Guides).

3

 He applied the diagnosis-based impairment (DBI) methodology, pursuant Table 16-3 

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

on page 511 of the A.M.A., Guides, and explained that appellant had undergone a left knee total 

knee replacement, which was the class of diagnosis (CDX), with poor results due to moderate-tosevere motion deficit. Dr. Sless therefore assigned appellant’s impairment as a Class 4. He also 

noted that a lower limb questionnaire was administered and a score of 57 was recorded for which 

he assigned a grade modifier for functional history (GMFH) of 2. Dr. Sless used Table 16-7 and 

assigned a grade modifier for physical examination (GMPE) of 2. Using Table 16-8 on page 519,

he assigned a grade modifier for clinical studies (GMCS) of 3. Dr. Sless noted that he applied the 

net adjustment formula which resulted in a net adjustment of -2 and a final rating of 59 percent 

permanent impairment of the left lower extremity.

On June 1, 2022 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

On June 6, 2022 OWCP referred the case record, including a statement of accepted facts 

(SOAF), to Dr. Herbert White,Jr., Board-certified in occupational medicine, serving as the OWCP 

district medical adviser (DMA). The referral letter noted that appellant had previously been paid 

schedule awards for a total of 69 percent permanent impairment of the left lower extremity.

In a June 12, 2022 report, Dr. White noted appellant’s history of injury and medical

treatment. He explained that the relevant anatomic region was the left knee and referred to the 

A.M.A., Guides, Regional Grid for Total Knee Replacement, at Table 16-3, page 511. The DMA 

indicated that the CDX is a Class 4 impairment, for a poor result with moderate motion. He 

assigned a GMFH of 2 for antalgic gait with assistive device, and explained that the GMFH was 

increased to 3 for a Class 4 impairment, according to Table 16-6, page 516. The DMA assigned a

GMPE of 2, and explained that the GMPE was increased to Grade 3 for a Class 4 impairment,

according to Table 16-7, page 517. For the GMCS, he assigned Grade 3 and explained the GMCS 

wasincreased to 4 for a Class 4 impairment, according to Table 16-8, page 519. The DMA applied 

the net adjustment formula4 and found a net adjustment of -2. He explained that the default 

impairment rating for Class 4, Grade C, was 67 percent, pursuant to Table 16-3, page 511, and that

the net adjustment of -2 moved the impairment rating down 2 grades to Class 4, Grade A, which 

resulted in a rating of 59 percent permanent impairment of the left lower extremity. The DMA 

also explained that the ROM method could not be used to rate the impairment, according to page 

552 of A.M.A., Guides which indicates, “Only if no other approach is available to rating, calculate 

impairment based on range of motion as explained in section 16.7.” Dr. White noted that he 

concurred with Dr. Sless and opined that appellant’s left lower extremity permanent impairment 

rating was 59 percent. The DMA also noted that MMI was reached on May 19, 2022, the date of

Dr. Sless’ examination. 

On June 14, 2022 OWCP denied appellant’s claim for an increased schedule award.

4 A.M.A., Guides 521.
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. The method 

used in making such determination is a matter which rests in the sound discretion of OWCP. For 

consistent results and to ensure equal justice, good administrative practice necessitates 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 2009.7 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.8

In determining permanent impairment of 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, 

the evaluators are directed to provide reasons for their impairment rating choices, including the 

choices of diagnoses from regional grids and calculations of modifier scores. 11

The A.M.A., Guides explain that, while the ROM method is an alternative approach for 

calculating permanent impairment of the lower extremities, it is to be used primarily as a physical 

examination factor and is only used to determine actual impairment values when it is not possible 

to otherwise define impairment.12

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7 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 2.808.5a (March 2017); see also Chapter 3.700, Exhibit 1 (January 2010).

8

See C.L., Docket No. 20-0316 (issued November 22, 2022); P.R., Docket No. 19-0022 (issued April9, 2018); 

Isidoro Rivera, 12 ECAB 348 (1961).

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

10 Id. at 515-22.

11 Id. at 23-28.

12 A.M.A., Guides 497; see D.C., Docket No. 21-0954 (issued October 11, 2022); see also M.S., Docket No. 

20-0036 (issued February 5, 2021); N.M., Docket No. 19-1925 (issued June 3, 2020); M.P., Docket No. 18-1298 

(issued April 12, 2019).
5

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish greater than 69 

percent permanent impairment of the left lower extremity, for which he previously received 

schedule award compensation.

The Board notes that appellant’s treating physician, Dr. Sless, and the DMA, Dr. White, 

concurred in their opinions and found that appellant had 59 percent permanent impairment of the 

left lower extremity. The report from Dr. Sless dated May 19, 2022, and the report from Dr. White 

dated June 12, 2022, applied the A.M.A., Guides and found that appellant had a Class 4 

impairment, based on the CDX of left knee total knee replacement with poor results due to 

moderate-to-severe motion deficit.

13

 They also found that the net adjustment formula resulted in 

a net adjustment of minus 2, and that the final impairment rating was 59 percent. 14

The Board also notes that the DMA explained why the ROM method could not be used to 

rate the impairment, and referred to page 552 of the A.M.A., Guides which indicates, “Only if no 

other approach is available to rating, calculate impairment based on range of motion as explained 

in section 16.7.”

As there is no medical evidence of record supporting greater impairment than the 69 

percent award for the left lower extremity, for which appellant previously received schedule award

compensation, the Board finds that he has not met his 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 his burden of proof to establish greater than 69 

percent permanent impairment of the left lower extremity, for which he previously received 

schedule award compensation.

13 Supra note 8.

14 Supra note 11.
6

ORDER

IT IS HEREBY ORDERED THAT the June 14, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 2, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board