United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.J., Appellant 

and 

DEPARTMENT OF THE INTERIOR, LOWER 

COLORADO DAMS OFFICE, Boulder City, NV, 

Employer 

__________________________________________ 

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Docket No. 14-369 

Issued: May 13, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 3, 2013 appellant filed a timely appeal from an October 2, 2013 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 sustained greater than four percent impairment to the left 

leg. 

FACTUAL HISTORY 

On May 10, 2010 appellant, then a 43-year-old supervisory apprentice coordinator, 

twisted her left ankle while walking on uneven surface of a parking lot in need of repair. OWCP 

 1

 5 U.S.C. § 8101-8193. 
2

accepted the claim for left ankle strain and paid all appropriate compensation. No time from 

work was lost due to the injury. 

On April 1, 2013 appellant filed a claim for a schedule award. In a March 5, 2013 report, 

Dr. Gerald W. Torgesen, a podiatrist, advised that he has been treating appellant since June 2012. 

He noted that her original work-related injury of left ankle sprain resulted in altered gait and 

subsequent plantar fasciitis pain. While appellant had improved, there was still occasional left 

ankle and foot pain which could be limiting. There was also some instability in the left ankle as 

a result of the injury. Dr. Torgesen opined that appellant’s injury had stabilized and she has 

reached a point of maximal medical improvement. 

In an April 10, 2013 report, Dr. Michael S. Ravitch, a Board-certified orthopedic 

surgeon, noted the history of injury and that appellant had complained of pain and swelling in the 

left ankle. On examination there was swelling and tenderness about the lateral aspect of the left 

ankle as well as the plantar fascia of the left foot. Dr. Ravitch noted a March 31, 2011 magnetic 

resonance imaging scan was compatible with osteochondritis desiccans and possible strain of the 

posttibial ligament. He stated that appellant has undergone extensive physical therapy and had 

shown improvement but continued to have symptoms about the left ankle. Dr. Ravitch found 

that surgery was not indicated. He opined that appellant was stable and ratable and her claim 

could be closed. 

OWCP referred appellant, together with a statement of accepted facts, the medical 

records and a list of questions, to Dr. Aubrey Swartz, a Board-certified orthopedic surgeon, for a 

second opinion evaluation to determine whether she sustained any permanent impairment due to 

her work injury. In a May 28, 2013 report, Dr. Swartz reviewed the history of injury, the 

medical records and noted appellant’s complaints. He noted a weak left ankle with shooting 

pains in the left heel which traveled down the left medial foot and toes and an ache in the dorsum 

of her left foot and anterior ankle. Appellant was not able to walk long distances. She also 

utilized ice on a regular basis to the left ankle region. Clinical findings included full ankle range 

of motion, but decreased subtalar range of motion with inversion 10/15 and eversion 0/5 (left 

ankle compared to right ankle). There was some left calf girth atrophy of two centimeters, left 

being smaller than right. There was no left ankle tenderness, but slight dysesthesia was noted 

about the left lateral ankle with pinwheel testing. No clinical instability was noted. Dr. Swartz 

opined that appellant had a chronic strain of left ankle which was connected to the ligamentous 

strain and temporary aggravation of her preexisting degenerative condition, which resolved 

within the first 12 months, or by May 10, 2011. He opined that her current symptoms were 

related to the preexisting degenerative changes. Dr. Swartz found there were no current injuryrelated factors of disability including objective findings or subjective complaints and noted that 

there was no local tenderness found anywhere in the left ankle. Utilizing the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009), he rated four 

percent left lower extremity impairment. Under Table 16-22, page 549, Dr. Swartz found 

extension or dorsiflexion of 20 degrees and plantar flexion of 50 degrees both equaled zero 

percent lower extremity impairment. Under Table 16-20, he found 10 degree inversion of left 

ankle equaled two percent lower extremity impairment and 0 degrees eversion equaled two 

percent lower extremity impairment. Dr. Swartz found that appellant had total four percent left 

lower extremity impairment, which was equivalent to class 1 under Table 16-25. He also stated 
3

that a functional history adjustment would also result in class 1 impairment, which would equate 

to no change in the final award. 

In a September 18, 2013 report, an OWCP medical adviser noted the history of injury and 

his review of the medical file, including Dr. Swartz’s May 28, 2013 impairment evaluation. He 

agreed with Dr. Swartz’s recommendation of an impairment based on a stand-alone method for 

loss of range of motion. The medical adviser also agreed with Dr. Swartz’s impairment 

calculations under the A.M.A., Guides and that appellant had four percent impairment of the left 

lower extremity. He stated that maximum medial improvement was reached by May 10, 2011. 

By decision dated October 2, 2013, OWCP issued a schedule award for four percent left 

lower extremity impairment. The award ran for 11.52 weeks from May 10 to July 29, 2011. 

LEGAL PRECEDENT 

The schedule award provision of FECA and its implementing regulations2 set forth the 

number of weeks of compensation payable to employee 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 shall be determined. The method used in 

making such a determination is a matter that rests within the sound discretion of OWCP.3

 For 

consistent results and to ensure equal justice under the law to all claimants, good administrative 

practice necessitates the use of a single set of tables so that there may be uniform standards 

applicable to all claimants. The A.M.A., Guides has been adopted by the implementing 

regulations as the appropriate standard for evaluating schedule losses.4

 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.5 

The sixth edition requires identifying the impairment class for the diagnosed condition 

(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH), 

Physical Examination (GMPE) and Clinical Studies (GMCS).6 The net adjustment formula is 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7

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

also provides that range of motion may be selected as an alternative approach in rating 

impairment under certain circumstances. A rating that is calculated using range of motion may 

not be combined with a diagnosis-based impairment and stands alone as a rating.8

 

 2

 20 C.F.R. § 10.404. 

3 Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986). 

4 Ronald R. Kraynak, 53 ECAB 130 (2001). 

5

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

Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule 

Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 

6

 A.M.A., Guides 494-531. 

7 Id. at 521. 

8 L.B., Docket No. 12-910 (issued October 5, 2012). 
4

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

should be routed to an OWCP medical adviser for an opinion concerning the percentage of 

impairment using the A.M.A., Guides.

9

 

ANALYSIS 

The sixth edition of the A.M.A., Guides states that diagnosis-based impairment is the 

primary method of evaluation for the upper and lower limb and method of choice for calculating 

impairment.10 On the other hand, range of motion based impairment may be used as a standalone rating when other grids refer the evaluator to this method or when no other diagnosis-based 

sections are applicable for impairment rating of a condition.11 A range of motion impairment 

stands alone and is not combined with diagnosis impairment.12 In this case, both Dr. Swartz and 

OWCP’s medical adviser utilized the range of motion based impairment rating. 

The Board finds that OWCP properly relied on the opinions of Dr. Swartz and its medical 

adviser to find that appellant had four percent impairment of her left leg. 

Dr. Swartz properly found under Table 16-22, page 549, that the full ankle range of 

motion of 20 degrees extension or dorsiflexion and 50 degrees plantar flexion both equaled zero 

percent lower extremity impairment. Under Table 16-20, he properly found that 10 degrees 

inversion of left ankle equaled two percent lower extremity impairment and 0 degrees eversion 

equaled two percent lower extremity impairment. Under Table 16-25, page 550, Dr. Swartz 

found appellant had total four percent left lower extremity impairment, which was equivalent to 

class 1 or mild impairment. He also stated that an adjustment for functional history would also 

result in class 1 impairment, which would not change in the final impairment of four percent. 

The medical adviser reviewed the May 28, 2013 impairment evaluation of Dr. Swartz and 

agreed that the rating based on range of motion was appropriate. He applied the standards of the 

sixth edition of the A.M.A., Guides in the same manner as Dr. Swartz and concluded that 

appellant had four percent impairment of her left leg. The medical adviser additionally 

determined that maximum medical improvement was attained by May 10, 2011. 

Appellant contends that she has not achieved maximum medical improvement as she 

continues to suffer pain, difficulty walking, and swelling and buckling of her left ankle. 

However, her physicians, Dr. Torgesen and Dr. Ravitch, both opined that maximum medical 

improvement had been reached despite the fact that she may continue to suffer symptoms. There 

is no additional evidence showing that appellant has greater impairment than four percent. For 

this reason, the Board finds that the weight of the medical evidence rests with Dr. Swartz and 

OWCP’s medical adviser. 

 9

 Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.808.6(d) (August 2002). 

10 A.M.A., Guides, 387, 461, 497, 543, 552. 

11 Id. at 552. 

12 Id. at 543. 
5

Appellant may request a schedule award or increased schedule award 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 did not sustain greater than four percent left lower 

extremity impairment. 

ORDER 

IT IS HEREBY ORDERED THAT the October 2, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 13, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board