United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Jackson, MS, Employer 

__________________________________________ 

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Docket No. 14-1021 

Issued: July 1, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 31, 2014 appellant timely appealed a February 25, 2014 nonmerit decision and 

an October 16, 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.2

ISSUES 

The issues are: (1) whether appellant has greater than 11 percent impairment of her right 

lower extremity, greater than 14 percent impairment of her left lower extremity, and greater than 

2 percent impairment of the left upper extremity; and (2) whether OWCP properly denied further 

merit review pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. §§ 8101-8193. 

2

 The record on appeal contains evidence received after OWCP issued its February 25, 2014 decision. The Board 

is precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision. 

20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

Appellant, a 57-year-old former sales and service associate, has an employment-related 

bilateral foot condition and consequential left shoulder injury.3

 Under claim number xxxxxx163, 

OWCP accepted bilateral plantar fasciitis which arose on or about May 1, 2004. Appellant also 

has an accepted occupational disease claim (xxxxxx970) for chronic pain syndrome and bilateral 

plantar fasciitis with a March 30, 2009 date of injury.4

 She last worked in May 2009. On 

January 1, 2010 appellant fell at home injuring her left shoulder. She attributed the fall to left 

foot discomfort and pain. OWCP accepted left rotator cuff tear as a consequential injury under 

claim number xxxxxx970. 

Appellant has undergone multiple surgical procedures involving her feet, which includes 

bilateral plantar fasciotomy and Topaz ablation. She has also undergone left shoulder 

arthroscopic decompression, which OWCP authorized. Dr. Stefanie M. Thomas, D.P.M., treated 

appellant’s bilateral foot condition. Dr. William B. Geissler, a Board-certified orthopedic 

surgeon, treated appellant’s left shoulder condition. 

On June 27, 2008 OWCP granted a schedule award (xxxxxx163) for two percent 

impairment of the left leg. The award was based on the fifth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (2001). OWCP relied on the 

June 19, 2008 report of its district medical adviser (DMA), Dr. Howard “H.P.” Hogshead, an a 

Board-certified orthopedic surgeon, who found left lower extremity impairment due to loss of 

inversion under Table 17-12, Hindfoot Impairment Estimates, A.M.A., Guides 537 (2001). 

Dr. Hogshead found that appellant had reached maximum medical improvement (MMI) on 

June 16, 2008. 

Appellant requested reconsideration and OWCP referred her for a second opinion 

evaluation.5 Dr. B. Thomas Jeffcoat, a Board-certified orthopedic surgeon and OWCP referral 

physician, examined appellant on July 9, 2009. Dr. Jeffcoat found two percent bilateral lower 

extremity impairment under Table 16-2, Foot and Ankle Regional Grid (LEI), A.M.A., Guides

501 (6th ed. 2008). 

In a report dated September 4, 2009, Dr. Guillermo M. Pujadas, a Board-certified 

orthopedic surgeon and DMA, found 11 percent right lower extremity impairment and 14 percent 

left lower extremity impairment. He did not rely on Dr. Jeffcoat’s July 9, 2009 findings, but 

 3

 Appellant received a disability retirement effective July 13, 2009. 

4

 OWCP doubled appellant’s lower extremity occupational disease claims, and designated claim number 

xxxxxx163 as the master file. 

5

 Appellant’s podiatrist, Dr. Thomas, was unfamiliar with rating impairment under the latest version of the 

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

instead based his rating on previous range of motion (ROM) measurements provided by 

appellant’s podiatrist, Dr. Thomas.6

By decision dated September 16, 2009, OWCP granted a schedule award for 11 percent 

impairment of the right lower extremity (RLE) and an additional 12 percent impairment of the 

left lower extremity (LLE).7

 The decision incorrectly noted that the latest award was based on 

Dr. Jeffcoat’s July 9, 2009 report. 

On March 3, 2012 appellant filed a Form CA-7 for a schedule award under claim number 

xxxxxx970. Dr. Thomas had recently advised that appellant had reached MMI following her 

latest surgery, which was a Topaz procedure performed on May 17, 2010. 

In a May 15, 2012 schedule award development letter, OWCP asked Dr. Thomas to 

submit an impairment rating under the A.M.A., Guides (6th ed. 2008). Appellant had previously 

advised OWCP that Dr. Thomas was unfamiliar with the impairment rating process. On May 23, 

2012 Dr. Thomas referred appellant for an impairment rating for her accepted conditions of 

plantar fasciitis, chronic pain syndrome and left rotator cuff tear. OWCP authorized the 

requested impairment rating. 

On June 12, 2012 Robyn Roberts, a registered occupational therapist (OTR), evaluated 

appellant and found two percent impairment of the left upper extremity based on a diagnosis of 

acromioclavicular (AC) joint disease.8

 She also found one percent bilateral lower extremity 

impairment based on a diagnosis of plantar fasciitis. Although Ms. Roberts reportedly rated 

appellant under the A.M.A., Guides (6th ed. 2008), she did not identify any of the specific rating 

criteria she had used. When OWCP subsequently forwarded the record to a new DMA, 

James W. Dyer, for review, it incorrectly identified the June 12, 2012 impairment rating as 

having been provided by “Dr. Robyn Roberts.”9

 6

 Dr. Thomas’ undated report was received by OWCP on June 23, 2008. She provided various ROM 

measurements and noted that appellant had reached MMI on June 16, 2008. This was the same information the 

previous DMA had used to calculate a two percent left lower extremity impairment under the Table 17-12, A.M.A., 

Guides 537 (5th ed. 2001). See supra note 5. Whereas Dr. Hogshead’s rating was limited to hind foot ROM 

impairment, Dr. Pujadas’ bilateral lower extremity rating included both hindfoot and ankle motion impairments 

under Table 16-20, Table 16-22 and Table 16-25, A.M.A., Guides 549-50 (6th ed. 2008). Dr. Pujadas similarly 

found that appellant had reached MMI as of June 16, 2008. 

7

 Although the DMA found 14 percent LLE impairment, appellant had already received compensation for 2 

percent impairment. Therefore, OWCP paid an additional 12 percent for the left lower extremity. It subsequently 

approved a lump-sum payout on appellant’s schedule award, which covered the period August 30, 2009 through 

December 6, 2010. 

8

 Ms. Roberts is also a physical therapist (PT) and certified hand therapist (CHT). 

9

 Prior to the claims examiner’s September 19, 2012 referral to the DMA, appellant had complained to OWCP 

about Ms. Roberts’ evaluation, noting that she was not a doctor and was reportedly unfamiliar with some parts of her 

rating. Appellant also complained to her U.S. Senator, who in turn passed her concerns along to OWCP. 
4

In a report dated September 20, 2012, Dr. Dyer, noted that the “AP” assigned one percent 

for each lower extremity based on the A.M.A., Guides (6th ed. 2008).10 He did not specifically 

comment on whether the “AP’s” rating accurately reflected the extent of any bilateral lower 

extremity impairment, but merely noted that appellant had already been paid a schedule award 

for 11 percent RLE impairment and 14 percent LLE impairment for the same problem of both 

feet. Therefore, no additional schedule award for plantar fasciitis was indicated. With respect to 

appellant’s left upper extremity (LUE), Dr. Dyer noted impairment due to shoulder surgical 

decompression for impingement syndrome.11 He expressed his agreement with the AP’s 

June 12, 2012 rating of two percent LUE impairment. Dr. Dyer rated appellant based on a 

diagnosis of impingement syndrome under Table 15-5, Shoulder Regional Grid, A.M.A., Guides 

402 (6th ed. 2008). He explained that appellant had class 1 Classs of Diagnosis (CDX-1) 

impairment, with a default grade (C) upper extremity impairment of three percent. After 

adjustments for Functional History (GMFH-2), Physical Examination (GMPE-0) and Clinical 

Studies (GMCS-0), Dr. Dyer calculated a net adjustment of -1.12 As such, he adjusted 

appellant’s rating from grade C to B, which corresponded to two percent upper extremity 

impairment. Dr. Dyer found that appellant reached MMI on June 12, 2012. 

On October 25, 2012 OWCP granted a schedule award for two percent impairment of the 

left upper extremity under claim number xxxxxx970. It also found that appellant was not 

entitled to additional impairment of the lower extremities. The October 25, 2012 decision noted 

she had already been compensated for a combined “23” percent impairment of the lower 

extremities under claim number xxxxxx163.13 OWCP noted that the current rating was based on 

the medical findings and report of “Dr. Robyn Roberts” dated June 12, 2012, as well as the 

September 20, 2012 report of Dr. Dyer, the DMA. 

On February 4, 2013 appellant requested reconsideration. She reiterated earlier 

complaints about Ms. Roberts’ June 12, 2012 impairment rating. Appellant argued that 

Ms. Roberts was a physical therapist who seemed not to have sufficient knowledge of the 

impairment rating process with respect to feet. She believed a certified physician was going to 

provide a rating. Appellant also noted that Ms. Roberts had not consulted with Dr. Thomas 

despite having stated she would. 

OWCP acknowledged its mistake in identifying Ms. Roberts as a physician. 

Consequently, it prepared an August 5, 2013 statement of accepted facts and referred appellant 

for another second opinion evaluation with Dr. Jeffcoat. 

 10 Dr. Dyer is a Board-certified orthopedic surgeon. “AP” was most likely referring to Ms. Roberts as an 

attending physician. 

11 As previously noted, Dr. Geissler performed left shoulder arthroscopic decompression on March 25, 2011. 

12 Net Adjustment (-1) ꞊ (GMFH 2-CDX 1) + (GMPE 0-CDX 1) + (GMCS 0-CDX 1). See Section 15.3d, 

A.M.A, Guides 411 (6th ed. 2008). 

13 Actually, OWCP previously compensated appellant for a combined 25 percent bilateral lower extremity 

impairment, not 23 percent. 
5

Dr. Jeffcoat reexamined appellant on September 26, 2013. He currently found one 

percent bilateral lower extremity impairment and no ratable (zero) impairment of the left upper 

extremity. However, Dr. Jeffcoat did not provide a basis for his impairment rating in accordance 

with the A.M.A., Guides (6th ed. 2008).14 

In an October 4, 2013 supplemental report, Dr. Jeffcoat indicated appellant had no ratable 

(zero) lower extremity impairment under Table 16-2, Foot and Ankle Regional Grid (LEI), 

A.M.A., Guides 501 (6th ed. 2008). This was a departure from his September 26, 2013 finding of 

one percent bilateral lower extremity impairment. Dr. Jeffcoat also indicated that appellant had 

no impairment (zero) of the left upper extremity under Table 15-5, Shoulder Regional Grid, 

A.M.A., Guides 402 (6th ed. 2008). 

On October 8, 2013 OWCP sought additional clarification regarding the date of MMI. 

Dr. Jeffcoat subsequently identified May 11, 2011 as the date of MMI. 

On October 11, 2013 OWCP referred Dr. Jeffcoat’s impairment rating to Dr. Hogshead, 

as the DMA. Dr. Hogshead reviewed Dr. Jeffcoat’s recent reports and concurred with his 

finding of no ratable (zero) impairment of the upper and lower extremities under the A.M.A., 

Guides (6th ed. 2008). 

In an October 16, 2013 merit decision, OWCP modified the October 25, 2012 schedule 

award to reflect no ratable (zero) impairment of the upper and lower extremities under the 

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

On October 22, 2013 appellant requested reconsideration. She challenged the accuracy 

of Dr. Jeffcoat’s opinion and accused him of lying. 

On October 25, 2013 OWCP issued a preliminary determination that appellant received 

an overpayment in the amount of $49,304.05. The overpayment was based on the October 16, 

2013 decision finding no ratable (zero) impairment under the A.M.A., Guides (6th ed. 2008). 

Consequently, OWCP sought to recover schedule award benefits previously paid for two percent 

LUE impairment, 11 percent RLE impairment, and 12 percent LLE impairment under the 

A.M.A., Guides (6th ed. 2008).15

By decision dated February 25, 2014, OWCP denied appellant’s request for 

reconsideration. 

LEGAL PRECEDENT 

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions and organs of the body.16 FECA, 

 14 He also did not mention his prior two percent bilateral lower extremity impairment rating. 

15 The preliminary overpayment determination excluded the June 27, 2008 schedule award for two percent 

impairment of the left leg under the fifth edition of the A.M.A., Guides (2001). 

16 For total loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1). 

For a 100 percent loss of use of a leg, an employee shall receive 288 weeks’ compensation. Id. at § 8107(c)(2). 
6

however, does not specify the manner by which the percentage loss of a member, function or 

organ shall be determined. To ensure consistent results and equal justice under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants. The 

implementing regulations have adopted the American Medical Association, Guides to the 

Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule 

losses.17 Effective May 1, 2009, schedule awards are determined in accordance with the 6th

edition of the A.M.A., Guides (2008).18

When determining entitlement to a schedule award, preexisting impairment to the 

schedule member should be included.19 Impairment ratings for schedule awards include those 

conditions accepted by OWCP as job related, and any preexisting permanent impairment of the 

same member or function.20 If the work-related injury has affected any residual usefulness in 

whole or in part, a schedule award may be appropriate.21 There are no provisions for 

apportionment under FECA.22 However, when the prior impairment is due to a previous workrelated injury and a schedule award has been granted for such prior impairment, the percentage 

already paid is subtracted from the total percentage of impairment.23

Certain healthcare providers such as physician assistants, nurse practitioners, physical 

therapists and social workers are not considered “physician[s]” as defined under FECA.24 

Consequently, their medical findings and/or opinions will not suffice for purposes of establishing 

entitlement to FECA benefits.25

ANALYSIS 

The Board finds that the case is not in posture for decision. 

 17 20 C.F.R. § 10.404. 

18 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability 

Claims, Chapter 2.808.6a (February 2013). 

19 Carol A. Smart, 57 ECAB 340, 343 (2006); Michael C. Milner, 53 ECAB 446, 450 (2002). 

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

Chapter 2.808.5d (February 2013). 

21 Id.

22 Id.

23 Id. at Chapter 2.808.7a(1); 20 C.F.R. § 10.404(c). 

24 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). 

25 K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a 

physician assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified 

physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) 

(January 2013). 
7

OWCP’s October 16, 2013 decision purports to modify a September 16, 2009 bilateral 

lower extremity schedule award that was not the subject of appellant’s February 4, 2013 request 

for reconsideration. On reconsideration, appellant challenged OWCP’s October 25, 2012 

schedule award, which granted two percent impairment of the left upper extremity under claim 

number xxxxxx970. The October 25, 2012 decision did not question the validity of the 

September 16, 2009 bilateral lower extremity award, but merely noted appellant was not entitled 

to additional impairment of the lower extremities.26

Having realized that the October 25, 2012 decision was based on a physical therapist’s 

June 2012 findings, OWCP referred appellant to Dr. Jeffcoat for another second opinion 

evaluation. Dr. Jeffcoat initially found one percent bilateral lower extremity impairment, but 

later changed his rating to zero impairment. He also found zero impairment of appellant’s left 

upper extremity. OWCP’s October 16, 2013 decision concluded, without explanation, that 

Dr. Jeffcoat’s latest findings represent the “correct impairment ratings” under the A.M.A., 

Guides (6th ed. 2008). Therefore, OWCP modified all prior awards under the sixth edition to 

reflect zero impairment, and then initiated overpayment proceedings. 

Its reliance on Dr. Jeffcoat’s latest opinion is misplaced. This was his second OWCPdirected examination of appellant, but there was no reference to his July 9, 2009 evaluation. 

Also, Dr. Jeffcoat’s September and October 2013 reports do not adequately explain how he 

arrived at his upper and lower extremity impairment ratings. Although his October 4, 2013 

supplemental report identified various tables, Dr. Jeffcoat’s explanation for how he arrived at his 

ratings is unclear. Specifically, it is unclear which diagnosis and/or diagnostic criteria he 

applied. Once OWCP undertakes development of the record it must do a complete job in 

procuring medical evidence that resolves the relevant issues in the case.27

Regarding the lower extremities, Dr. Jeffcoat claimed to have initially rated appellant 

class 2 impairment. But if his diagnosis was plantar fasciitis/soft tissue, Table 16-2, Foot and 

Ankle Regional Grid (LEI), A.M.A., Guides 501 (6th ed. 2008) does not provide an impairment 

rating for class 2 plantar fasciitis. Also, without explanation, Dr. Jeffcoat changed the lower 

extremity grade modifiers he initially reported on September 26, 2013. He reduced GMFH from 

2 to 1 and GMPE from 1 to 0. Again, this change in his October 4, 2013 supplemental report 

occurred without any apparent explanation. Dr. Jeffcoat also neglected to provide ROM 

measurements to support his assessment of full range of motion in both upper and lower 

extremities. He did not explain how he arrived at May 11, 2011 as the date of MMI, and it is 

unclear whether this date pertained to appellant’s bilateral foot condition and/or her left shoulder 

condition. 

Because of the above-noted deficiencies in Dr. Jeffcoat’s September and October 2013 

reports, OWCP’s October 16, 2013 decision is set aside, and the case remanded for further 

 26 In fact, Dr. Dyer, the DMA whose September 20, 2012 report formed the basis of the October 25, 2012 award, 

did not comment on whether Ms. Robert’s one percent rating for plantar fasciitis accurately reflected the extent of 

any bilateral lower extremity impairment. 

27 Richard F. Williams, 55 ECAB 343, 346 (2004). 
8

medical development. After OWCP has developed the record to the extent it deems necessary, a 

de novo decision shall be issued.28

CONCLUSION 

The case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the October 16, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further action 

consistent with this decision. 

Issued: July 1, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 28 In view of the Board’s disposition on the merits of the case, the propriety of OWCP’s February 25, 2014 

nonmerit decision is moot.