United States Department of Labor 

Employees’ Compensation Appeals Board 

_________________________________________ 

K.K., Appellant 

and 

DEFENSE AGENCIES, NATIONAL 

GEOSPATIAL-INTELLIGENCE AGENCY 

STAINT LOUIS, Springfield, VA, Employer 

_________________________________________ 

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Docket No. 14-1318 

Issued: October 15, 2014 

Appearances: Case Submitted on the Record 

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 13, 2014 appellant filed a timely appeal from the November 15, 2013 Office of 

Workers’ Compensation Programs’ (OWCP) schedule award decision. 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 schedule award determination.2

 

ISSUE 

The issue is whether appellant met her burden of proof to establish that she has more than 

a two percent permanent impairment of her right leg, for which she received a schedule award. 

                                                             1

 5 U.S.C. § 8101 et seq. 

2

 Under the Board’s Rules of Procedure an appeal must be filed within 180 days from the date of the last OWCP 

decision. An appeal is considered filed upon receipt by the Clerk of the Board. One hundred and eighty days from 

November 15, 2013, the date of OWCP’s decision, was May 14, 2014. Since using May 19, 2014, the date the 

appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is 

considered the date of filing. The date of the U.S. Postal Service postmark is May 13, 2014 which rendered the 

appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 
2

FACTUAL HISTORY 

On February 22, 2011 appellant, then a 61-year-old team leader, fell on her left elbow 

and knee and twisted her right ankle in the performance of duty. She stopped work on 

February 22, 2011. OWCP accepted the claim for sprain of the right ankle, contusion of the left 

knee, contusion of the left elbow and right lateral ankle instability. It also authorized a 

February 7, 2012 right ankle surgery. Appellant received appropriate compensation and benefits. 

In a letter dated May 16, 2013, OWCP advised appellant that she may be entitled to a 

schedule award of compensation. On June 10, 2013 appellant filed a claim for a schedule award. 

In a letter dated June 14, 2013, OWCP informed appellant of the type of evidence needed 

to support her claim for a schedule award and requested that she submit such evidence within 30 

days. It advised her that her physician should provide a medical report and opinion on whether 

her condition had reached maximum medical improvement and a detailed description of any 

impairment in accordance with the American Medical Association, Guides to the Evaluation of 

Permanent Impairment, (6th ed. 2009) (hereinafter, A.M.A., Guides). 

In a June 19, 2013 report, Dr. Richard B. Helfrey, an orthopedic surgeon and osteopath, 

noted appellant’s history of injury and treatment and indicated that on February 7, 2012 he 

performed a Brostrom-Gould lateral ankle reconstruction to her right ankle and she was placed in 

a splint. He advised that she tolerated this procedure well and indicated that she had no 

immediate postoperative concerns. Dr. Helfrey noted that on appellant’s last visit on 

December 28, 2012, she demonstrated no instability whatsoever to talar or tilt testing. He 

advised that her ankle was well aligned and the incision was completely healed. Dr. Helfrey 

noted that she had tenderness over the sinus tarsi fat pad areas, no deltoid ligament laxity and 10 

to 12 degrees of dorsiflexion and 35 to 40 degrees of plantar flexion. He explained that he 

thought appellant’s strength was quite good at the time and released her to maximum medical 

improvement. Dr. Helfrey opined that with her range of motion and persistent symptoms, she 

had two percent whole person impairment which equated to five percent impairment of the lower 

extremity or seven percent to the foot and ankle. He did not indicate that he used the A.M.A., 

Guides. 

On August 21, 2013 OWCP referred appellant for a second opinion to determine the 

extent of her work-related residuals and whether she sustained a permanent impairment, along 

with a statement of accepted facts, a set of questions and the medical record to Dr. Richard T. 

Katz, Board-certified in physical medicine and rehabilitation. 

In an October 3, 2013 report, Dr. Katz noted appellant’s history of injury and examined 

her right ankle. The right ankle showed clear swelling without warmth or redness and pain on 

the medial and lateral portion of the ankle. Dr. Katz opined that appellant reached maximum 

medical improvement on October 28, 2012. He explained that the most appropriate way to rate 

her ankle, was to use range of motion (ROM). Dr. Katz noted that appellant had dorsiflexion of 

20 degrees, plantar flexion of 30 degrees, inversion of 10 degrees and eversion of 20 degrees. 

He advised that her fracture healed without objective findings and referred to page 503 of the 

A.M.A., Guides, which revealed a zero percent rating for the fracture. Dr. Katz noted that 

appellant’s range of motion revealed a slight loss of plantar flexion, which according to page 549 

of the A.M.A., Guides, was not ratable. He noted that the hindfoot impairment revealed five 
3

degrees of inversion or five percent lower extremity impairment. Dr. Katz referred to Table 

16.25 of the A.M.A., Guides and noted that this was a class 1 impairment. He found a functional 

history of grade 2 impairment and found “the PE” was “a grade 2 impairment with significant 

swelling.” Dr. Katz explained that according to page 548 of the A.M.A., Guides, “if functional 

history modifier exceeds the impairment class and requirements stated above are met, modify the 

final impairment.” He indicated that no further instructions were given and opined that appellant 

had a seven percent lower extremity impairment based on the loss of ROM, swelling and 

functional history. 

In an October 16, 2013 report, OWCP’s medical adviser noted that the date of maximum 

medical improvement was October 3, 2013, the date of Dr. Katz’s report. He utilized 

Table 16-20, Table 16-22 and Table 16-25 of the A.M.A., Guides. The medical adviser 

explained that Dr. Katz incorrectly reported a finding for ROM for inversion that was not 

supported by the right ankle examination. He explained that dorsiflexion of 20 degrees 

corresponded to zero percent impairment, plantar flexion of 30 degrees corresponded to zero 

percent impairment, inversion of 10 degrees corresponded to two percent impairment and 

eversion of 20 degrees was zero percent impairment. The medical adviser referred to Table 

16-17 and found that the 2 percent rating for ROM multiplied by 5 percent (for a functional 

history net modifier) yielded 0.1 percent, which, when added to 2 percent impairment, was equal 

to 2.1 percent, which rounded down to 2 percent. He explained that since the rating was a 

hindfoot rating, it was rounded off as two percent pursuant to Table 16-25. The medical adviser 

explained that Dr. Katz incorrectly calculated that the rating had been five degrees of inversion 

whereas the examination finding was 10 degrees. He determined that appellant had two percent 

impairment of the right leg. 

Accordingly, on November 15, 2013, OWCP granted appellant a schedule award for two 

percent permanent impairment of the right leg. The award covered a period of 5.76 weeks from 

October 3 to November 12, 2013. 

LEGAL PRECEDENT 

The schedule award provision of FECA3

 and its implementing federal regulations,4 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. However, 

FECA does not specify the manner in which the percentage of loss shall be determined. For 

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.5 For decisions after 

February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.6 

For decisions issued after May 1, 2009, the sixth edition will be used.7

 

                                                             3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404. 

5 Id. at § 10.404(a). 

6

 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003). 

7

 FECA Bulletin No. 09-03 (issued March 15, 2009). 
4

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). The net adjustment formula is 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8

 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.9 

Range of motion should be measured after a warm up, in which the individual moves the 

joint through its maximum range of motion at least three times. The range of motion 

examination is then performed by recording the active measurements from three separate range 

of motion efforts. All measurements should fall within 10 degrees of the mean of these three 

measurements. The maximum observed measurement is used to determine the range of motion 

impairment.10 

OWCP’ 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.

11 

ANALYSIS 

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

OWCP accepted appellant’s claim for sprain of the right ankle, contusion of the left knee, 

contusion of the left elbow and right lateral ankle instability. It issued a schedule award for a 

two percent impairment of the right leg based on the October 16, 2013 opinion of OWCP’s 

medical adviser. 

In support of her claim, appellant submitted a June 19, 2013 report from Dr. Helfrey, who 

noted appellant’s February 7, 2012 right ankle surgery and her postoperative course. Dr. Helfrey 

noted that on her last visit on December 28, 2012, she demonstrated no instability whatsoever to 

talar or tilt testing and that her ankle was well aligned and the incision was completely healed. 

He indicated that appellant had 10 to 12 degrees of dorsiflexion and 35 to 40 degrees of plantar 

flexion. Dr. Helfrey opined that with her range of motion and persistent symptoms, she had two 

percent whole person impairment, five percent lower extremity impairment or seven percent 

impairment to the foot and ankle. The Board notes that it is unclear how he arrived at these 

values as he did not refer to the A.M.A., Guides. It is well established that when the attending 

physician fails to provide an estimate of impairment conforming to the A.M.A., Guides, his or 

                                                             8

 A.M.A., Guides 521. 

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

10 A.M.A., Guides 464. 

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

Chapter 2.808.6(d) (August 2002). 
5

her opinion is of diminished probative value in establishing the degree of permanent 

impairment.12 Thus, OWCP properly referred appellant to Dr. Katz. 

In his October 3, 2013 report, Dr. Katz examined appellant and opined that range of 

motion was the best way to rate her impairment due to her right ankle injury. Although he noted 

right ankle inversion of 10 degrees in noting examination findings, he reported it as five degrees 

when conducting his rating which he found equated to five percent lower extremity impairment. 

Dr. Katz advised that appellant had a class 1 impairment under Table 16-25 of the A.M.A., 

Guides and that she had a functional history grade 2 net modifier. He explained that according to 

page 548 of the A.M.A., Guides, “if functional history modifier exceeds the impairment class 

and requirements stated above are met, modify the final impairment.” Dr. Katz noted that there 

were no further instructions in the A.M.A., Guides and opined that appellant had a seven percent 

lower extremity impairment. 

In an October 16, 2013 report, OWCP’s medical adviser explained that Dr. Katz 

incorrectly reported a finding for ROM for inversion that was not supported by his right ankle 

examination. He advised that inversion of 10 degrees corresponded to two percent leg 

impairment and that application of the functional history net modifier did not change this 

percentage. 

The Board notes that both Dr. Katz, the second opinion physician and OWCP’s medical 

adviser provided findings and an opinion utilizing range of motion method for rating appellant’s 

impairment. While OWCP’s medical adviser correctly noted that Dr. Katz used an incorrect 

measurement for inversion, neither physician provided a range of motion rating fully in 

conformance with the procedure outlined in the A.M.A., Guides. In particular, the Board notes 

that there is no indication that Dr. Katz measured range of motion three times after a warm up 

and then utilized the average of the measurements as required by section 15.7 of the A.M.A., 

Guides.

13 As Dr. Katz did not follow the appropriate procedures for documenting range of 

motion, his report and that of the medical adviser, who used Dr. Katz’s measurements, are of 

limited probative value.14 

It is well established that proceedings under FECA are not adversarial in nature and, 

while the claimant has the burden to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence.15 Once OWCP undertakes development of the 

medical evidence, it has the responsibility to do so in a proper manner.16 The reports from 

Dr. Katz and OWCP’s medical adviser are insufficient to resolve the issue of whether appellant 

was entitled to a greater schedule award. As OWCP did not properly discharge its 

responsibilities in developing the record, the Board finds that the case must be remanded for 

                                                             12 Linda Beale, 57 ECAB 429 (2006); see also E.S., Docket No. 11-1162 (issued November 17, 2011). 

13 See supra note 10. 

14 See D.U., Docket No. 13-2086 (issued February 11, 2014) (where there was no indication that a physician 

obtained three joint measurements, the physician’s report was of diminished probative value). 

15 Richard E. Simpson, 55 ECAB 490 (2004). 

16 Melvin James, 55 ECAB 406 (2004). 
6

further development of the medical evidence and a reasoned opinion regarding whether appellant 

has more than a two percent permanent impairment of her right leg, for which she received a 

schedule award.17 Following such further development as deemed necessary, OWCP shall issue 

a de novo decision. 

On appeal, appellant argued that she believed she was entitled to a greater award as both 

her physician and the second opinion physician gave her a higher rating. However, as found 

above, the case is not in posture for decision. 

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the November 15, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded.

Issued: October 15, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

                                                             17 Richard F. Williams, 55 ECAB 343 (2004).