United States Department of Labor

Employees’ Compensation Appeals Board

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A.T., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Edgefield, SC, Employer

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Docket No. 22-0002

Issued: February 3, 2023

Appearances: Case Submitted on the Record

Garryl L. Deas, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On October 1, 2021 appellant, through counsel, filed a timely appeal from a June 14, 2021 

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.3

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.

3 The Board notes that, following the June 14, 2021 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 10 

percent permanent impairment of each lower extremity, for which he received a schedule award.

FACTUAL HISTORY

On November 12, 2019 appellant, then a 32-year-old correctional officer, filed a traumatic 

injury claim (Form CA-1) alleging that on November 11, 2019 he injured both knees when 

retrieving a suspicious item and restraining an inmate while in the performance of duty. He 

stopped work on November 11, 2019. OWCP accepted the claim for a rupture of the patellar 

tendon in the right and left knees. On November 13, 2019 appellant underwent a repair of the right 

and left patellar tendons. OWCP paid him wage-loss compensation on the supplemental rolls 

effective December 27, 2019 and on the periodic rolls effective January 5, 2020. 

A magnetic resonance imaging scan of the right knee, obtained a July 23, 2020, showed 

mild-to-moderate partial thickness interstitial tearing of the repaired patellar tendon. 

In a functional capacity evaluation (FCE) dated December 11, 2020, physical therapists 

found that appellant had 4/5 strength of the right and left knees. 

In an impairment evaluation dated December 11, 2020, Dr. Kevin Murr, an orthopedic 

surgeon, reviewed appellant’s history of bilateral patellar tendon ruptures treated with surgery.4

He diagnosed a spontaneous rupture of the tendons of the bilateral knees. Dr. Murr measured 

range of motion (ROM) of the right knee three times, with the greatest measurement on the right 

of 120 degrees flexion and negative 8 degrees extension, and on the left of 120 degrees flexion 

and negative 5 degrees extension. He further found some atrophy on the right side. Referencing 

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

Impairment (A.M.A., Guides),5 Dr. Murr identified the Class of Diagnosis (CDX) as a class 1 

ruptured tendon with mild motion deficits, which yielded a default value of seven percent

according to Table 16-3 on page 509. He applied a grade modifier for functional history (GMFH) 

of one on the right side based on appellant’s mild antalgic gait, and found a GMFH on the left was 

not applicable. Dr. Murr further found a grade modifier for physical examination (GMPE) of one 

for both the right and left knee dues to mild motion loss and that a grade modifier for clinical 

studies (GMCS) was inapplicable. Applying the net adjustment formula yielded no change for the 

default value of seven percent impairment for each lower extremity.

On June 8, 2021 appellant filed a schedule award claim (Form CA-7). 

In a report dated June 5, 2021, Dr. James W. Butler, Board-certified in occupational 

medicine, serving as a district medical adviser (DMA), identified the CDX using Table 16-3 on 

page 509 as a class 1 patellar tendon rupture bilaterally with significant weakness based on 

appellant’s 4/5 knee strength, which yielded a default value of 10 percent. He applied a GMFH 

bilaterally of one due to appellant’s antalgic gait, a GMPE of one due to bilateral palpatory 

4 Physical therapists performed the impairment evaluation and Dr. Murr cosigned the report.

5 A.M.A., Guides (6th ed. 2008).
3

findings, and a GMCS of one for clinical studies showing mild pathology. Dr. Butler found no 

change from the default value of 10 percent after applying the net adjustment formula. He noted 

that appellant’s ROM measurements for the knees were normal according to Table 16-23 on page 

549. Dr. Butler found that he had reached maximum medical improvement on December 11, 2020. 

He concluded that appellant had 10 percent permanent impairment of each lower extremity due to 

appellant’s patellar tendon rupture.

By decision dated June 14, 2021, OWCP granted appellant a schedule award for 10 percent 

permanent impairment of the right and left lower extremity. The period of the award ran for 57.6 

weeks from May 23 to June 30, 2022.6 

LEGAL PRECEDENT

The schedule award provision of FECA,7and its implementing federal regulations,

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 

is then adjusted by grade modifiers based on functional history (GMFH), physical examination 

(GMPE) and clinical studies (GMCS).12 The net adjustment formula is (GMFH - CDX) + (GMPE 

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

6 OWCP advised appellant that it was adjusting the starting date of the schedule award to May 23, 2021 as he had 

received wage-loss compensation for disability until that date. 

7 Supra note 2.

8 20 C.F.R. § 10.404.

9 For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, 

Chapter 2.808.6 (March 2017); see also id. 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.

12 Id. at 494-531.

13 Id. at 411.
4

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

scores.14

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

should be routed to a DMA for an opinion concerning the nature and percentage of impairment in 

accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of 

impairment specified.15

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish greater than 10 

percent permanent impairment of each lower extremity, for which he received a schedule award.

In support of his claim, appellant submitted a December 11, 2020 impairment evaluation 

from Dr. Murr who diagnosed a bilateral tendon rupture of the knees. Dr. Murr measured the 

ROM of the knees three times, finding a maximum measurement of 120 degrees flexion and 

negative 8 degrees extension on the right and 120 degrees flexion and negative 5 degrees extension 

on the left.16 Using Table 16-3 on page 509 of the A.M.A., Guides, he identified the CDX as a 

class 1 ruptured tendon with mild deficits in ROM, which yielded a default value of seven percent. 

For the right side, Dr. Murr applied a GMFH and GMPE of one and found a GMCS was not 

applicable. For the left side, he applied a GMFH of one and found a GMPE and GMCS was 

inapplicable. Dr. Murr found no change from the default value of seven percent. 

On June 5, 2021 Dr. Butler reviewed the December 11, 2020 FCE and impairment 

evaluation. He identified the CDX as a class 1 patellar tendon rupture with significant weakness 

based on the FCE’s finding of 4/5 knee strength bilaterally, which yielded a default value of 10 

percent according to Table 16-3. For the bilateral knees, Dr. Butler applied a GMFH of one based 

on appellant’s antalgic gait, a GMPE of one due to bilateral palpatory findings, and a GMCS of 

one for mild pathology. Applying the net adjustment formula yielded no change from the default 

value of 10 percent.17 The Board notes that there is no asterisk by the ruptured tendon diagnosis 

in Table 16-3 allowing the use of the ROM as an alternative method of assessment.

18

 The Board 

finds that the evidence supports that appellant has no more than 10 percent permanent impairment 

of each lower extremity due to his patellar tendon rupture. There is no current medical evidence 

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

15 See supra note 9 at Chapter 2.808.6(f) (March 2017).

16 The A.M.A., Guides provides that the evaluator shall obtain three ROM measurements and the greatest 

measurement should be used. A.M.A., Guides at 544. 

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

(1-1) + (1-1) + (1-1) = 0, yielded a zero adjustment. Even if the GMCS is inapplicable as used to identify the CDX, 

the net adjustment would remain zero. 

18 See T.B., Docket No. 20-0642 (issued September 30, 2020); N.M., Docket No. 19-1925 (issued June 3, 2020).
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of record, in conformance with the A.M.A., Guides, establishing a greater permanent 

impairment.19 

On appeal appellant contends that his impairment is greater than that found by Dr. Murr 

and the physical therapists. As discussed, the DMA found that appellant had 10 percent permanent 

impairment of each lower extremity rather than the 7 percent found by Dr. Murr. Appellant has 

not submitted evidence demonstrating a greater impairment rating of the lower extremities based 

on the standards of the sixth edition of the A.M.A., Guides.

20

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 his burden of proof to establish greater than 10 

percent permanent impairment of each lower extremity, for which he received a schedule award.

19 See D.C., Docket No. 20-0916 (issued September 14, 2021); M.H., Docket N0. 20-1109 (issued September 27, 

2021); A.T., Docket No. 20-0370 (issued September 27, 2021).

20 M.H., id.
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ORDER

IT IS HEREBY ORDERED THAT the June 14, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 3, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board