J.G. and Department of Justice, U.S. Marshals Service (Board decision, March 27, 2024)

ECAB final decision. The Board affirmed OWCP’s denial of a higher right leg schedule award. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A U.S. Marshals Service investigator sought more than the seven percent right leg impairment previously awarded for a knee injury. One treating rating did not identify the guide or calculation, and another used an outdated edition. OWCP’s second opinion used the required sixth edition and found a rating below the earlier award. The Board found no competent rating supporting an increase and affirmed the decision.

Decision snapshot

• Authority: FECA schedule award rating using the sixth edition of the A.M.A. Guides.
• Outcome: October 23, 2023 decision affirmed; no increase above seven percent.
• Key point: A higher impairment award needs a rating calculated under the required guide.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.G., Appellant
)
)
and ) Docket No. 24-0129
)
Issued: March 27, 2024
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Charlotte, NC, Employer )
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 27, 2023 appellant filed a timely appeal from an October 23, 2023 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.

ISSUE

The issue is whether appellant has met his burden of proof to establish greater than seven percent permanent impairment of his right lower extremity, for which he previously received schedule award compensation.

FACTUAL HISTORY

On May 24, 2022 appellant, then a 49-year-old criminal investigator, filed a traumatic injury claim (Form CA-1) alleging that on May 20, 2022 he experienced slight tension and pain in

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5 U.S.C. § 8101 et seq. his right knee after jogging in the employing establishment’s approved fitness program. OWCP assigned OWCP File No. xxxxxx236 and accepted the claim for a complex tear of the medial meniscus, right knee. On July 28, 2022 appellant underwent a right knee arthroscopy with partial medial meniscectomy and patellar chondroplasty, performed by Dr. Jonathan Riboh, a Board- certified orthopedic surgeon.

Under OWCP File No. xxxxx522, OWCP accepted an April 5, 2007 traumatic injury, for a tear of the right medial meniscus, an aggravation of right chondromalacia patella, and derangement of the right posterior horn of the medial meniscus. On June 26, 2007 appellant underwent an OWCP-authorized right knee arthroscopy, partial medial meniscectomy, debridement, and chondroplasty. By decision dated December 5, 2007, OWCP granted him a schedule award for two percent permanent impairment of the right lower extremity. By decision dated March 3, 2008, OWCP granted appellant an additional award for five percent permanent impairment, for a total seven percent permanent impairment of the right lower extremity. The schedule awards were calculated under the standards set forth under the fifth edition of American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2 The claim files have been administratively combined by OWCP, with the current claim serving as the master file.

In a September 6, 2022 letter, Dr. Riboh indicated that appellant reached maximum medical improvement (MMI) on September 6, 2022, following his July 28, 2022 right knee surgical procedure. He concluded that appellant had one percent permanent impairment of the right lower extremity.

On October 19, 2022 appellant filed a claim for compensation (Form CA-7) for a schedule award under OWCP File No. xxxxxx236.

In an October 20, 2022 development letter, OWCP informed appellant of the deficiencies in his schedule award claim and requested additional medical evidence. It afforded him 30 days to submit the requested medical evidence.

In a November 30, 2022 report, Dr. Riboh reported that appellant was four months post right knee arthroscopy with partial medial meniscectomy and patellar chondroplasty. He related appellant’s physical examination findings and noted that he had progressed to symptomatic arthritis. Based on the fifth edition of the A.M.A., Guides, Dr. Riboh opined that appellant had seven percent impairment to the right lower extremity based on his minimum of three millimeters of articular cartilage interval on his radiographs. In a November 30, 2022 letter, Dr. Riboh opined that appellant had reached MMI with a revised permanent impairment rating of seven percent.

On January 24, 2023 OWCP referred appellant’s case, along with a January 6, 2023 statement of accepted facts (SOAF), to Dr. Chason S. Hayes, a Board-certified orthopedic surgeon, for a second opinion permanent impairment evaluation.

In a February 23, 2023 report, Dr. Hayes noted appellant’s medical course of treatment regarding his right knee. He also related appellant’s physical examination findings. Dr. Hayes

2
A.M.A., Guides (5th ed. 2001).

2 opined that appellant was at MMI with regard to his right knee arthroscopy as of his examination. Under the diagnosis-based impairment (DBI) method of the sixth edition of the A.M.A., Guides,3 Dr. Hayes opined that appellant had two percent permanent impairment of the right knee due to his partial medial meniscectomy. Under Table 16-3, Knee Regional Grid -- Lower Extremity Impairments, page 509, he found a class of diagnosis (CDX) of meniscal injury for partial medial meniscectomy, resulted in a Class 1 impairment with a default impairment value of grade C or 2 percent impairment. Dr. Hayes found grade modifier for functional history (GMFH) of 2 under Table 16-6, page 516; grade modifier for physical examination (GMPE) of 1 under Table 16-7, page 517; and a grade modifier for clinical studies (GMCS) of 1 under Table 16-8, page 519. Application of the net adjustment formula resulted in +1 for a final grade of D or 2 percent permanent impairment. Dr. Hayes reported three range of motion (ROM) measurements of full extension and flexion of 135 degrees. Under the ROM impairment methodology, he found zero percent permanent impairment.

On March 30, 2023 OWCP referred appellant’s case to Dr. Todd Fellars, a Board-certified orthopedic surgeon serving as an OWCP district medical adviser (DMA). In an April 6, 2023 report, Dr. Fellars reviewed the SOAF and the medical record. He concurred with Dr. Hayes’ February 23, 2023 opinion that appellant reached MMI February 23, 2023 and had two percent right lower extremity permanent impairment. He concluded therefore that no additional schedule award could be granted. In calculating appellant’s permanent impairment under the sixth edition of the A.M.A., Guides, Dr. Fellars found that per Table 16-3, the claimant has a Class 1 impairment. Per Table 16-6 the claimant has a GMFH of 2; per Table 16-7, the claimant has a GMPE of 1; per Table 16-8, the claimant has a GM of 1. Therefore, the net adjustment was +1, which equaled two percent lower extremity permanent impairment. Dr. Fellars also found that there was no ROM based impairment as full range of motion was documented. He considered both DBI and ROM methodologies and chose the DBI methodology as it provided the greatest level of impairment.

By decision dated April 14, 2023, OWCP denied appellant’s claim for an increased schedule award finding that the evidence was insufficient to support an increase in the seven percent right lower extremity schedule award previously granted. It afforded the weight of the medical evidence to Dr. Fellars’ April 6, 2023 report.

On May 1, 2023 appellant requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review. OWCP received additional evidence including a January 19, 2023 postsurgical report from Dr. Riboh, which reflected the need for medial knee bracing. It also received Fitness-for-Duty Assessments from the employing establishment which reflected an excellent physical efficiency while running on November 22, 2021 and a fair physical efficiency while running on July 14, 2023.

Following a preliminary review, by decision dated August 18, 2023, OWCP’s hearing representative set aside the April 14, 2023 decision and remanded the case for clarification from the DMA and the issuance of a de novo decision. The hearing representative noted that the April 14, 2023 decision did not mention Dr. Riboh’s November 30, 2022 impairment evaluation

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

3 issued under the fifth edition of the A.M.A., Guides, but indicated that the fifth edition of the A.M.A., Guides was no longer used. The hearing representative found that the DMA failed to indicate what grade modifier he was referencing under Table 16-8, although it was assumed to be clinical studies; and he had referenced both upper and lower extremity impairment when referring to appellant’s impairment. The hearing representative thus concluded that OWCP should request a supplemental report from the DMA, Dr. Fellars to correct the above-noted deficiencies.

On August 23, 2023 OWCP requested that Dr. Fellars clarify his April 6, 2023 report in accordance with the hearing representative’s directives and submit an addendum report.4

In an August 31, 2023 report, Dr. Nathan Hammel, a Board-certified orthopedic surgeon, serving as OWCP’s DMA, reviewed the medical evidence of record and concurred with Dr. Hayes’ February 23, 2023 impairment rating. He opined that appellant reached MMI on February 23, 2023, the date of appellant’s impairment evaluation with Dr. Hayes. Dr. Hammel indicated that there was no permissible range of motion-based permanent impairment for the lower extremity. Under the DBI methodology of the A.M.A., Guides, he found under Table 16-3 that appellant had a Class 1, grade C impairment for partial medial meniscectomy. Dr. Hammel additionally found a GMFH of 2, a GMPE of 1, and that a GMCS was not applicable as it determined the CDX. He applied the net adjustment formula and found a net of +1, which moved the grade C to a grade D or 2 percent right lower extremity permanent impairment. Dr. Hammel found that no additional schedule award should be granted as the current permanent impairment was less than the prior award of seven percent permanent impairment for the same body part.

On September 25, 2023 OWCP requested that its DMA clarify as to whether the January 19, 2023 postsurgical report and the Fitness-for-Duty Assessments from the employing establishment were medically significant to assessing appellant’s final impairment rating.

In an October 4, 2023 report, Dr. Hammel, again serving in his capacity as the DMA, indicated that the new information did not change the impairment calculations previously provided.

In an October 23, 2023 de novo decision, OWCP denied appellant’s claim for an increased schedule award.

LEGAL PRECEDENT

The schedule award provisions of FECA,5 and its implementing federal regulations,6 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 4 Dr. Fellars passed away on August 8, 2023.
5
Supra note 1.
6
20 C.F.R. § 10.404.

4 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

A claimant may seek an increased schedule award if the evidence establishes that he or she sustained an increased impairment causally related to an employment injury.9 The medical evidence must include a detailed description of the permanent impairment.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): A Contemporary Model of Disablement.11 Under the sixth edition, the evaluator identifies the impairment class of diagnosis (CDX), which 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

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

  should be routed to a DMA for an opinion concerning the percentage of permanent impairment using the A.M.A., Guides.15

                                                ANALYSIS
  

  The Board finds that appellant has not met his burden of proof to establish greater than
  seven percent permanent impairment of his right lower extremity for which he previously received schedule award compensation.

  Appellant provided a series of reports from Dr. Riboh. In a September 6, 2022 letter,
  Dr. Riboh opined that appellant had one percent permanent impairment of the right lower 7
  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 Awards and Permanent Disability Claims, Chapter 2.808.5a (March 2017); see also id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 8
  P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).
  9
  See T.W., Docket No. 20-1547 (issued October 4, 2021).
  10
  See K.F., Docket No. 18-1517 (issued October 9, 2019).
  11
  A.M.A., Guides (6th ed. 2009), p.3, section 1.3.
  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
  Supra note 6 at Chapter 2.808.6f (March 2017); B.B., Docket No. 18-0782 (issued January 11, 2019).

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  extremity. However, he did not indicate which edition of the A.M.A., Guides was used, or how the permanent impairment rating was calculated. The Board has held that an opinion regarding permanent impairment lacks probative value if it is not derived in accordance with the standards adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses.16 In a November 30, 2022 report, Dr. Riboh related that appellant had seven percent permanent impairment of the right lower extremity based on the fifth edition of the A.M.A., Guides. However, his report is of limited probative value because he did not use the sixth edition of the A.M.A., Guides as is required under FECA.17

   OWCP referred appellant to Dr. Hayes for a second opinion impairment evaluation. In his
  

  February 23, 2023 report, Dr. Hayes utilized the DBI rating method as yielded a greater result than the ROM rating method, which yielded zero percent permanent impairment. Under the DBI rating method, he opined that appellant had two percent permanent impairment due to his partial medial meniscectomy. Dr. Hayes determined under Table 16-3, page 509 that appellant’s CDX of meniscal injury for partial medial meniscectomy resulted in a Class 1 impairment, with a default impairment value of grade C or 2 percent permanent impairment. He determined under Table 16- 6, page 516 a GMFH of 2; under Table 16-7, page 517, GMPE of 1; and under Table 16-8, page 519, GMCS of 1. Application of the net adjustment formula (GMFH - CDX) + (GMPE - CDX) = (2 - 1) + (1 - 1) = +1 for a final grade of D or 2 percent permanent impairment. Dr. Hayes reported three range of motion (ROM) measurements of full extension and flexion of 135 degrees and found, under Table 16-23, page 549, 0 percent impairment due to 135 degrees of flexion and extension.

  In accordance with its procedures, OWCP properly routed the case record to its DMA.
  

  While Dr. Fellars initially served as OWCP’s DMA, an OWCP hearing representative found that his April 6, 2023 report required clarification as his report failed to indicate what grade modifier he was referencing under Table 16-8, although it was assumed to be clinical studies; and he had referenced both upper and lower extremity impairment when referring to appellant’s impairment. Following OWCP’s request for a supplemental report from Dr. Fellars, OWCP received an August 31, 2023 report, Dr. Hammel, serving in the capacity as OWCP’s DMA. In his August 31, 2023 report, Dr. Hammel concurred with Dr. Hayes’ two percent permanent impairment rating of the right lower extremity based on the DBI impairment methodology. He provided impairment calculations that mirrored those of Dr. Hayes. Dr. Hammel explained that the DBI method of rating produced a higher impairment rating than what would be calculated under the ROM method. He concluded that as appellant was previously granted a schedule award for seven percent permanent impairment of his right lower extremity, he was not entitled to an additional schedule award. Dr. Hammel further opined, in his October 4, 2023 report that a January 19, 2023 postsurgical report and Fitness-for-Duty Assessments from the employing establishment, did not change the impairment calculations previously provided.

16
See A.K., Docket No. 19-1927 (issued March 31, 2021); N.A., Docket No. 19-0248 (issued May 17, 2019).
17
See A.C., Docket No. 22-0118 (issued December 15, 2022); K.B., Docket No. 20-0355 (issued January 26, 2021);
B.T., Docket No. 19-1586 (issued May 4, 2020); L.L., Docket No. 19-0855 (issued September 24, 2019); S.J., Docket No. 16-1162 (issued February 8, 2017) (a medical opinion not based on the appropriate edition of the A.M.A., Guides is of diminished probative value in determining the extent of permanent impairment).

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The Board finds that Dr. Hammel, serving as OWCP’s DMA, properly applied the standards of the A.M.A., Guides to the physical examination findings and report of Dr. Hayes to find that appellant had two percent permanent impairment of the right lower extremity. The DMA accurately summarized the relevant medical evidence, including findings on examination, and reached conclusions regarding appellant’s condition that comported with those findings. Thus, as appellant has previously received schedule awards totaling seven percent permanent impairment of his right lower extremity, appellant has not established that he is entitled to an additional award.

   Appellant may request a schedule award or an 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

seven percent permanent impairment of his right lower extremity for which he previously received schedule award compensation.

                                          ORDER

  IT IS HEREBY ORDERED THAT the October 23, 2023 decision of the Office of

Workers’ Compensation Programs is affirmed.

Issued: March 27, 2024
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

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