United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.V., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH, Employer 

__________________________________________ 

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Docket No. 15-1496 

Issued: November 4, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 30, 2015 appellant, through counsel, filed a timely appeal from an April 21, 

2015 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 met his burden of proof to establish more than five percent 

impairment of the right lower extremity for which he received a schedule award. 

FACTUAL HISTORY 

On January 21, 2009 appellant, then a 33-year-old city carrier, stepped into a hole and 

injured his right ankle and foot. OWCP accepted the claim for ankle sprain, plantar fascia 

 1

 5 U.S.C. § 8101 et seq. 
2

sprain, and second metatarsal fracture of the right foot. Appellant stopped work that day and 

later returned to a modified-duty position on June 20, 2009. 

Initial medical reports assessed possible fracture of the second metatarsal and sprained 

right ankle. A January 22, 2009 x-ray of the right foot revealed subtle lucency at the base of the 

second metatarsal on the frontal projection, probably representing a normal variation rather than 

fracture, and no evidence of fracture or dislocation of the ankle. Later, in a November 4, 2010 

report, Dr. Brian Donley, Board-certified in orthopedic surgery, advised that appellant was still 

experiencing ankle pain but no longer had pain in the area said to have been fractured. In a 

January 30, 2011 report, Dr. Allan Boike, a podiatrist, advised that appellant had a slowly 

resolving ankle strain and assessed tendinitis in the right foot, sinus tarsitis, and plantar fasciitis 

of the right foot. 

On November 13, 2012 appellant requested a schedule award. 

In a December 4, 2012 report, Dr. John Dunne, a Board-certified osteopath specializing 

in preventive and occupational medicine, provided an impairment rating. He noted appellant’s 

history of injury and examined his right foot and ankle. Examination revealed a slight antalgic 

shortened stance and inability to toe raise on the right with complaints of mid foot pain on the 

medial aspect. Dr. Dunne advised that range of motion of the ankle was obtained via goniometer 

and recorded flexion loss at 20 degrees, 10 degrees of extension, inversion at 25 degrees, and 

eversion limited to 10 degrees. He found that appellant had 19 percent permanent right lower 

extremity impairment in accordance with the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment.2

 Using Table 16-10, pages 530-31, and 

Table 16-22, page 549, Dr. Dunne determined that appellant had 7 percent impairment for 

flexion, 7 percent impairment for extension, 2 percent impairment for eversion, and 2 percent 

impairment for inversion, totaling 18 percent permanent left lower extremity impairment. He 

advised that under Table 16-25, page 550, Range of Motion ICF Classification, appellant had a 

class 2 impairment. Using Table 16-6, page 516, Dr. Dunne assigned grade modifier 1 for 

Functional History (GMFH) because of appellant’s antalgic limp with shortened stance. Using 

Table 16-17, page 545, he determined that his functional history adjustment was one higher than 

the impairment class, resulting in an increase of five percent for his total range of motion 

impairment. Multiplying 18 by 5 percent equaled .9 percent, which was rounded up to 1 percent 

and increased appellant’s rating to 19 percent impairment of the right lower extremity. 

Dr. Dunne advised that appellant reached maximum medical improvement (MMI) in April or 

May 2009. 

On January 31, 2013 an OWCP medical adviser evaluated Dr. Dunne’s report and 

concurred with his 19 percent permanent impairment of the right lower extremity rating. 

After counsel inquired about the status of the schedule award claim, OWCP advised 

counsel on January 10, 2014 that another OWCP medical adviser would review the matter to 

determine if the range of motion was an appropriate method of rating impairment. 

 2

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

On April 15, 2014 the medical adviser, Dr. Morley Slutsky, a Board-certified 

occupational medicine specialist, reviewed the medical evidence, including Dr. Dunne’s report. 

He determined that appellant had five percent permanent impairment of the right lower extremity 

in accordance with the sixth edition of the A.M.A., Guides. Dr. Slutsky rated appellant using the 

diagnosis-based impairment method as opposed to the range of motion method citing Section 

16.2 of the A.M.A., Guides, which states: “Range of motion is primarily used as physical 

examination adjustment factor and is only used to determine impairment values when it is not 

possible to otherwise define impairment.”3

 Dr. Slutsky noted that Dr. Dunne erred when he 

adjusted the final ankle range of motion impairment by five percent. He noted that the A.M.A., 

Guides allows adjustment when the functional history grade modifier is greater than the range of 

motion grade modifier. However, Dr. Dunne adjusted the final impairment by five percent even 

though the grade modifier 1 for functional history was less than the ankle range of motion grade 

modifier 2. Using Table 16-22 and Table 16-20, page 549, and Dr. Dunne’s range of motion 

measurements he assessed a moderate class 2 16 percent range of motion impairment. 

Dr. Slutsky advised that appellant had a class 1 ankle sprain with moderate motion deficits for 

five percent default impairment rating. He advised that fractured second metatarsal was not 

selected as the impairment class because it was not definitively diagnosed and Dr. Dunne did not 

address this condition in his impairment rating. Dr. Slutsky assessed a grade modifier 1 for 

functional history as appellant still had symptoms in the foot joint; grade modifier 1 for Physical 

Examination (GMPE) as appellant had tenderness to palpation; and no grade modifier for 

Clinical Studies (GMCS) as appellant had no diagnostic testing at the time of MMI. He applied 

the Net Adjustment Formula to find no adjustment from the default value; thus finding that 

appellant had five percent permanent impairment of the right ankle. Dr. Slutsky advised that the 

date of MMI was December 4, 2012 the date of Dr. Dunne’s impairment examination. 

In a June 19, 2014 decision, OWCP granted appellant a schedule award for five percent 

permanent impairment of his right lower extremity. The award ran for 14.4 weeks from 

December 4, 2012 to March 14, 2013.4

By letter dated June 25, 2015 appellant, though counsel, requested a telephone hearing 

before an OWCP hearing representative. On February 5, 2015 a telephone hearing took place. 

Counsel argued that, although the diagnosis based impairment method was the preferred method, 

the sixth edition of the A.M.A., Guides specifies that the method most favorable to the claimant 

should be used. He also disputed the fact OWCP deducted an overpayment of $3,817.87 from 

appellant’s total schedule award payment of 10,774.74. 

 3 Id. at 497. 

4

 To recover an overpayment under a separate claim, OWCP deducted $3,817.87 from appellant’s total schedule 

award payment of $10,774.74, leaving $6,956.87 to be paid to appellant. The other claim and the overpayment 

matter in that claim are not before the Board on the present appeal. The record also contains a December 22, 2014 

final overpayment decision in which OWCP found that appellant received a $6,956.86 overpayment of 

compensation because he received a duplicate schedule award payment. Counsel appealed this decision to the 

Board. On March 25, 2015 appellant repaid the overpayment. On August 6, 2015 the Board dismissed the appeal at 

counsel’s request. Docket No. 15-0500. 
4

By decision dated April 21, 2015, the hearing representative affirmed OWCP’s June 19, 

2014 decision finding that OWCP properly relied on Dr. Slutsky’s report when determining 

appellant’s entitlement to a schedule award. 

LEGAL PRECEDENT 

Section 8107 of FECA provides that, if there is permanent disability involving the loss or 

loss of use of a member or function of the body, the claimant is entitled to a schedule award for 

the permanent impairment of the scheduled member or function.5 Neither FECA nor the 

regulations specify the manner in which the percentage of impairment for a schedule award shall 

be determined. For consistent results and to ensure equal justice for all claimants OWCP has 

adopted the A.MA., Guides as the uniform standard applicable to all claimants.6

 For schedule 

awards after May 1, 2009, the impairment is evaluated under the sixth edition.7

The sixth edition requires identifying the impairment Class for Diagnosis (CDX), which 

is then adjusted by grade modifiers based on functional history, physical examination and 

clinical studies.8

 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - 

CDX).9

 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.10 

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

should be routed to the medical adviser for an opinion concerning the nature and percentage in 

accordance with the A.M.A., Guides with the medical adviser providing rationale for the 

percentage of impairment specified.11

ANALYSIS 

The Board finds that OWCP properly determined appellant’s five percent permanent 

impairment of his right leg. OWCP accepted the claim for ankle sprain, plantar fascia sprain, 

 5

 5 U.S.C § 8107. This section enumerates specific members or functions of the body for which a schedule award 

is payable and the maximum number of weeks of compensation to be paid; additional members of the body are 

found at 20 C.F.R. § 10.404(a). 

6

 20 C.F.R. § supra note 5. 

7

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

8

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

9 Id. at 521. 

10 Id. at 497; K.H., Docket No. 13-501 (issued January 28, 2014); L.B., Docket No. 12-910 (issued 

October 5, 2012). 

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

Chapter 2.808.6(f) (February 2013). 
5

and second metatarsal fracture of the right foot. Appellant claimed a schedule award and 

submitted an impairment rating from Dr. Dunne. 

In his December 4, 2012 report, Dr. Dunne found 19 percent permanent right ankle 

impairment. Using Table 16-22 and Table 16-20, page 549, he determined that appellant had 7 

percent impairment for flexion, 7 percent impairment for extension, 2 percent impairment for 

eversion, and 2 percent impairment for inversion, totaling 18 percent class 2 right lower 

extremity impairment. Using Table 16-6 on page 516, Dr. Dunne assigned grade modifier 1 for 

functional history because of appellant’s antalgic limp with shortened stance. Using Table 

16-17, page 545, he determined that appellant’s functional history adjustment was one higher 

than the ICF class, resulting in an increase of five percent, totaling 19 percent permanent 

impairment of the lower extremity. The Board finds that this rating is not in conformance with 

the A.M.A., Guides. Dr. Dunne assessed two percent permanent impairment for inversion, 

which in accordance with Table 16-20 on page 549, specifies 10-20 degrees of inversion. 

However, he measured inversion at 25 degrees, which should have resulted in zero percent 

impairment for inversion. Dr. Dunne also incorrectly used the functional history modifier to 

adjust appellant’s impairment. Table 16-17, page 545, specifies that the total range of motion 

impairment should be increased by five percent if the functional history modifier is greater than 

the range of motion ICF class. Here the functional history modifier of 1 is not greater that the 

ICF class of 2; therefore, Dr. Dunne should not have adjusted the impairment rating. 

Consistent with its procedures,12 OWCP properly referred the matter to its medical 

adviser for an opinion regarding appellant’s permanent impairment in accordance with the sixth 

edition of the A.M.A., Guides. The initial January 31, 2013 report from the medical adviser is of 

limited probative value as it appears to merely restate Dr. Dunne’s conclusions and did not note 

the errors in his calculation, noted above. OWCP thus properly referred the matter to another 

OWCP medical adviser, Dr. Slutsky. 

The Board finds that the second medical adviser, Dr. Slutsky, applied the appropriate 

tables and grading schemes of the A.M.A., Guides, in determining that appellant has five percent 

permanent impairment of the right ankle. Dr. Slutsky explained that Dr. Dunne did not properly 

calculate range of motion impairment. He also explained that under the A.M.A., Guides,

diagnosis-based impairment is the preferred rating method for the lower extremities and that 

range of motion ratings should only be used when no diagnosis-based ratings are available.13 

Dr. Slutsky also opined that the most appropriate diagnosis-based estimate was for right ankle 

sprain with moderate motion deficits, under Table 16-2 (foot and ankle-region grid), page 501. 

A class 1, default grade C equated to five percent permanent impairment of the right ankle. This 

selection was appropriate because the medical evidence of record specifies that appellant had a 

right ankle sprain with moderate motion deficits. Dr. Slutsky assessed a grade modifier 1 for 

functional history as appellant still had symptoms in the foot joint; grade modifier 1 for physical 

examination as appellant had tenderness to palpation; and no grade modifier for clinical studies 

as appellant had no diagnostic testing at the time of MMI. Using the net adjustment formula of 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), he found that (1-1) + (1-1) + (n/a) resulted 

 12 Id.

13 See A.M.A., Guides, 497, 552. 
6

in a net grade modifier of zero, resulting in no change of the default grade C five percent 

permanent impairment of the right leg. There is no other current probative medical evidence of 

record, in conformance with the sixth edition of the A.M.A., Guides, establishing that appellant 

has more than five percent permanent impairment of the right leg. 

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 has not established that he had greater than five percent 

permanent impairment of his right lower extremity, for which he received a schedule award. 

ORDER 

IT IS HEREBY ORDERED THAT the April 21, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 4, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board