United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.K., Appellant 

and 

U.S. POSTAL SERVICE, CLEVELAND 

ANNEX, Cleveland, OH, Employer 

__________________________________________ 

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Docket No. 16-0243 

Issued: May 9, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 24, 2015 appellant, through counsel, filed a timely appeal of a 

November 3, 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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant has established a schedule award. 

FACTUAL HISTORY 

This case has previously been before the Board. The facts as set forth in the Board’s 

prior decisions are incorporated herein by reference.2

 On June 24, 1997 appellant, then a 39-

 1

 5 U.S.C. § 8101 et seq. 

2

 Docket No. 10-1572 (issued May 23, 2011); Docket No. 12-724 (issued October 26, 2012). 
2

year-old casual clerk, filed a traumatic injury claim (Form CA-1), alleging that on that date she 

sustained an injury to her right leg when a colleague rolled a bulk mail carrier into her leg. 

OWCP accepted her claim for a right leg contusion/laceration, tear of the Achilles tendon, 

tendinitis, and right leg cellulitis. It paid medical and wage-loss compensation benefits. 

On October 6, 2009 OWCP terminated appellant’s wage-loss compensation and medical 

benefits. This termination of benefits decision was affirmed by a hearing representative on 

May 6, 2010 and by the Board on May 23, 2011.3

 On January 13, 2012 OWCP denied 

modification of its decision, and on October 26, 2012 the Board affirmed this decision.4

In a November 20, 2012 report, Dr. Jessica Glazer Volsky, an osteopath, found that 

appellant had 31 percent permanent impairment of her right lower extremity pursuant to the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 

2009) (A.M.A., Guides). She listed appellant’s diagnosis as right Achilles tendinitis. Dr. Volsky 

noted that appellant reached maximum medical improvement. She conducted a physical 

examination and noted that the right foot and ankle were swollen and hypersensitive to touch. 

Dr. Volsky noted that appellant had decreased plantar flexion and dorsiflexion, and that the 

Achilles tendon was severely tender to palpation and was swollen. She noted that appellant was 

unable to walk on her toes or heels secondary to increased pain. Dr. Volsky noted crepitus and 

muscle strength 3/5. She concluded that, based on Table 16-2 of the sixth edition of the A.M.A., 

Guides,

5

 appellant had a class 3 severe problem. Dr. Volsky assigned a grade modifier of 2 for 

functional history, based on Table 16-6, noting that appellant had a limp with routine use of a 

cane. She assigned a grade modifier of 3 for physical examination, based on Table 16-7, noting 

severe palpatory findings and ankle instability. With a net adjustment of negative 1 Dr. Volsky 

concluded that appellant had 31 percent permanent impairment of the right lower extremity. 

On January 11, 2013 appellant filed a claim for a schedule award (Form CA-7). 

In a January 17, 2013 report, Dr. Franklin B. Price, a physician Board-certified in internal 

medicine, found that appellant had 30 percent permanent impairment. He noted that appellant’s 

Achilles tendon never healed properly and that she walked with pain, a limp, and an antalgic 

gait. Dr. Price noted that she falls occasionally because of instability in her ankle and her 

inability to fully dorsiflex the foot. He noted that appellant had only 3/5 strength on dorsiflexion 

of the right foot and 4/5 strength on plantarflexion. Dr. Price noted that on inversion and 

eversion of the right ankle there was some pain, which he would rate as 3 to 4 out of 10. He 

indicated that because of the severe impairment of her right ankle, appellant has 30 percent 

permanent impairment of her whole person as a result of the ankle injury. 

By report dated January 31, 2013, the OWCP medical adviser agreed with the 31 percent 

impairment rating of Dr. Volsky. He noted that for the right lower extremity, right Achilles 

tendon tendinitis, applying Table 16-2 for class 3 for severe problem with a default C, would 

 3

 Docket No. 10-1572, supra note 2. 

4

 Docket No. 12-724, supra note 2. 

5

 A.M.A., Guides 501. 
3

equal 34 percent impairment of the lower extremity. The medical adviser listed a grade modifier 

of 2 for functional history and 3 for physical examination, and noted that an adjustment for 

clinical studies was not applicable. He noted that this would yield a net adjustment of negative 

1, which would move the category from C to B, and would equal 31 percent permanent 

impairment of the right lower extremity. 

By decision dated April 19, 2013, OWCP denied appellant’s claim for a schedule award, 

finding that as OWCP terminated appellant’s compensation because she had been found by 

OWCP, in a decision dated October 6, 2009, that she had no residuals from her work injury. 

On April 23, 2013 appellant, through counsel, requested a telephone hearing before the 

OWCP Branch of Hearings and Review. In a decision dated August 5, 2013, the OWCP hearing 

representative determined that further development of the medical evidence was necessary. He 

found that the termination of compensation benefits based upon a finding that appellant no 

longer has residuals of the accepted condition does not bar a subsequent schedule award claim. 

On August 9, 2013 OWCP referred appellant to Dr. Manhal Ghanma, a Board-certified 

orthopedic surgeon, for a second opinion. In an August 30, 2013 report, Dr. Ghanma concluded 

that appellant had no residuals from her accepted injury. He opined that she had zero percent 

impairment of the right lower extremity due to the June 24, 1997 work injury. Dr. Ghanma 

noted that, pursuant to Table 16-2 of the A.M.A., Guides, appellant fell into class 0 as she had no 

significant objective abnormal findings of muscle or tendon injury at maximum medical 

improvement. 

In a September 12, 2013 report, Dr. Price reported that appellant related a different 

history of injury than that noted by the second opinion physician. He noted that in his 

examination, besides being exquisitely tender in the Achilles tendon area, appellant had 

weakness when he tried to flex the right foot. Dr. Price noted that she walked with a slight limp 

and an antalgic gait, but he did not know if she was malingering. 

By decision dated September 19, 2013, the hearing representative denied appellant’s 

claim for a schedule award. 

On September 23, 2013 appellant, through counsel, requested a telephone hearing. At the 

hearing held on March 24, 2014 appellant’s counsel argued that Dr. Ghanma’s opinions were 

biased as he is “pretty uniform in his finding against injured worker.” He argued that OWCP 

should accept the opinion of treating physician, Dr. Volsky. 

By decision dated May 2, 2014, the hearing representative affirmed the denial of the 

schedule award. 

In an August 8, 2014 report, Dr. Catherine Watkins Campbell, Board-certified in family 

and preventive medicine, reviewed the medical record and conducted a physical examination. 

She noted that appellant was mildly but variably antalgic, and was able to effectively heel to toe 

walk. Dr. Campbell noted mild swelling of the right foot and ankle, but indicated that motor 

strength was normal. She indicated that palpation revealed a ban like tenderness around the 

lower calf but not down over the Achilles tendon. Dr. Campbell noted no evidence of instability. 

She determined that pursuant to Table 16-2 of the sixth edition of the A.M.A., Guides, a 
4

diagnosis of right Achilles tendinitis with minimal palpatory findings would be class 1. 

Dr. Campbell noted that considering the multiple diagnoses associated with the reported 

disability, a functional history modifier of 2 (moderate) rather than 3 (severe) was chosen. Since 

the two-centimeter atrophy on the right was felt to be more likely related to the right knee and 

lumbar radiculopathy conditions and because the other right Achilles tendon findings were 

minimal, a physical examination modifier of 1 was chosen. Dr. Campbell noted that there were 

no applicable clinical studies. Applying the formula set forth in the A.M.A., Guides, a functional 

history modifier of 1 was found (2-1) and a physical examination modifier of 0 (1-1) which 

equaled a total modifier of 1, which moved the default class C to the right for a class D, which 

Dr. Campbell determined equaled two percent impairment of the right lower extremity. 

On November 25, 2014 appellant, through counsel, requested reconsideration of the 

May 2, 2014 decision. 

On October 9, 2015 Dr. Morley Slutsky, an OWCP medical adviser reviewed the medical 

evidence concerning appellant’s entitlement to a schedule award and determined that appellant’s 

final right lower extremity impairment was zero percent. He noted a lack of consistent objective 

findings related to the accepted ankle conditions. The medical adviser concluded that appellant’s 

objective residuals were resolved as of June 28, 2008. He noted that although Dr. Campbell 

found evidence of a right ankle sprain, it was clear that the employment injury associated with 

appellant’s right ankle injuries resolved long before Dr. Campbell’s examination. 

In a decision dated November 3, 2015, OWCP denied modification of the May 2, 2014 

decision. 

LEGAL PRECEDENT 

The schedule award provision of FECA6 and its implementing regulations7 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment for 

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 insure 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.8

 The effective date of the sixth edition of 

the A.M.A., Guides is May 1, 2009.9

 6

 5 U.S.C. § 8107. 

7

 20 C.F.R. § 10.404.

8 Id.

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

Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010). 
5

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

then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination 

(GMPE), and Clinical Studies (GMCS).10 The net adjustment formula is (GMFH-CDX) + 

(GMPE-CDX) + (GMCS-CDX).11 

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 of 

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

for the percentage of impairment specified.12

Section 8123(a) provides that, if there is a disagreement between the physician making 

the examination for the United States and the physician of the employee, the Secretary shall 

appoint a third physician who shall make an examination.13 The implementing regulations state 

that, if a conflict exists between the medical opinion of the employee’s physician and the medical 

opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint 

a third physician to make an examination. This is called a referee examination and OWCP will 

select a physician who is qualified in the appropriate specialty and who has no prior connection 

with the case.14 In situations where there exist opposing medical reports of virtually equal 

weight and rationale and the case is referred to an impartial medical specialist for the purpose of 

resolving the conflict, the opinion of such specialist, if sufficiently well rationale and based upon 

a proper factual background, must be given special weight.15

Termination of a claim for benefits due to a finding of no residuals of the accepted 

condition does not bar a subsequent schedule award, rather the claims examiner should consider 

the schedule award matter separately from the termination of benefits. If a claimant applies for a 

schedule award after termination and submits prima facie medical evidence reflecting permanent 

impairment as a result of the employment-related injury or exposure, the claims examiner should 

develop the claim further, even if a finding of no residuals has previously been made. If medical 

evidence establishes that impairment to the scheduled member exists, the claimant has the 

burden to prove that the condition for which a schedule award is sought is causally related to his 

or her employment.16

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

11 Id. at 521. 

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

Chapter 2.808.6(f) (February 2013). 

13 R.C., Docket No. 12-437 (issued October 23, 2012). 

14 20 C.F.R. § 10.321. 

15 F.C., Docket No. 14-0560 (issued November 12, 2015). 

16 Supra note 12 at Chapter 2.808(11) (February 2013). 
6

ANALYSIS 

OWCP accepted appellant’s claim for right leg contusion/laceration, tear of the Achilles 

tendon, tendinitis, and right leg cellulitis. However, on October 6, 2009 it terminated her 

medical and compensation benefits. Appellant then filed a claim for a schedule award. OWCP 

denied this claim. 

The Board finds that there is an unresolved conflict in the medical opinion. The Board 

notes that the fact that appellant’s benefits were previously terminated due to lack of residuals 

has no bearing on the issue of whether she is entitled to a schedule award. These are two 

separate issues.17

Dr. Price found that appellant had 30 percent permanent impairment of her whole person 

as a result of the ankle injury. However, his opinion is of diminished weight. OWCP does not 

authorize the payment of schedule awards for the permanent impairment of the whole person.18 

Furthermore, Dr. Price does not explain how he reached his conclusion, and for this reason, his 

report would also be entitled to diminished weight.19

When appellant first filed her claim for a schedule award, she submitted the opinion of 

Dr. Volsky who found in a November 20, 2012 report that appellant had 31 percent impairment 

to her right lower extremity pursuant to the A.M.A., Guides. The OWCP medical adviser 

reviewed Dr. Volsky’s opinion and agreed that appellant had 31 percent impairment of her right 

lower extremity. These conclusions were reached after applying the sixth edition of the A.M.A., 

Guides. Dr. Volsky and the OWCP medical adviser applied Table 16-2 of the A.M.A., Guides

and found that appellant’s impairment rating was represented by class 3 as a severe problem. 

After applying a grade modifier of 3 for physical examination and 2 for functional history, 

Dr. Volsky noted that there was a net adjustment of negative 1, and concluded that appellant had 

31 percent right lower extremity impairment. 

Dr. Ghanma, the second opinion physician, disagreed with the conclusions of Dr. Volsky 

and Dr. Price that appellant had residuals and was entitled to a schedule award. He noted that 

pursuant to Table 16-2 of the A.M.A., Guides, appellant’s impairment was measured by class 0 

as she had no significant objective abnormal findings of muscle or tendon injury at maximum 

medical improvement, and that appellant therefore had no impairment to her right lower 

extremity under the A.M.A., Guides. 

OWCP denied appellant’s claim for a schedule award, as it found that the weight of the 

evidence was represented by the opinion of Dr. Ghanma. 

On November 25, 2014 appellant, through counsel, requested reconsideration. In support 

thereof, appellant submitted the report of Dr. Campbell, who found that appellant still had 

residuals in her right lower extremity, although not as great as those found by Dr. Volsky. 

 17 Id. 

18 C.J., Docket No. 15-1151 (issued January 27, 2016). 

19 See F.V., Docket No. 10-1522 (issued May 24, 2011).
7

Dr. Campbell applied Table 16-2 of the A.M.A., Guides and determined that appellant had a 

class 1 impairment due to right Achilles tendinitis with minimal palpatory findings. She found a 

functional history modifier of 2 and a physical examination modifier of 1. Based on these 

findings, and applying the formula as set forth in the A.M.A., Guides, Dr. Campbell determined 

that appellant had two percent impairment of the right lower extremity. His report was 

forwarded to the OWCP medical adviser, who concluded that appellant’s objective residuals 

were resolved as of June 28, 2008, long before Dr. Campbell’s examination, and that appellant 

had no impairment. OWCP denied appellant’s claim for modification of the schedule award. 

There remains an unresolved dispute as to whether appellant established her entitlement 

to a schedule award between appellant’s treating physicians and the physician who conducted the 

second opinion examination for OWCP. Dr. Volsky, who conducted the initial schedule award 

examination for appellant, found that appellant had 31 percent impairment to her right lower 

extremity, a finding with which the initial OWCP medical adviser agreed. Dr. Campbell, who 

performed a subsequent examination on behalf of appellant, determined that appellant had two 

percent impairment of her right lower extremity. Accordingly, both of appellant’s physicians 

determined that she was entitled to a schedule award for residual impairment of the right lower 

extremity after applying the A.M.A., Guides. However, second opinion physician, Dr. Ghanma, 

who performed the second opinion examination for OWCP, disagreed with appellant’s 

physicians, and found that appellant had no impairment, and a new OWCP medical adviser 

agreed with his conclusion. The dispute between the physicians centers on the appropriate class 

to utilize when rating appellant pursuant to Table 16-2 of the A.M.A., Guides. 

If there is disagreement between OWCP’s referral physician and appellant’s physician, 

OWCP will appoint a third physician who shall make an examination.20 For a conflict to arise, 

the opposing physician’s viewpoints must be of virtually equal weight and rationale.21 The 

Board finds that the opinion of Dr. Ghanma is of equal weight as the opinions of Drs. Volsky and 

Campbell. Accordingly, there was an unresolved conflict in the medical evidence. 

The Board finds that a conflict exists in the medical evidence with regard to the amount 

of appellant’s impairment of her right lower extremity. The Board will remand the case for 

referral to an impartial medical specialist for resolution of the conflict in the medical opinion 

evidence. After such further development as OWCP deems necessary, it shall issue a de novo 

decision. 

CONCLUSION 

The Board finds that this case is not in posture for decision due to an unresolved conflict 

in the medical opinion evidence. 

 20 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 

21 Darlene R. Kennedy, 57 ECAB 414 (2006). 
8

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated November 3, 2015 is set aside, and the case is remanded for 

further consideration consistent with this opinion. 

Issued: May 9, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board