United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Moberly, AL, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0156 

Issued: August 16, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 3, 2015 appellant filed a timely appeal of a September 8, 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)(1) and 501.3, the Board has 

jurisdiction to consider the merits of the case. 

ISSUE 

The issue is whether appellant has more than one percent impairment of his right lower 

extremity for which he received a schedule award. 

On appeal appellant alleged that Dr. Kevin Komes, a Board-certified physiatrist, properly 

evaluated his left ankle for schedule award purposes. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On January 16, 2014 appellant, then a 57-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on January 14, 2014 he stepped off a porch, missing the stair 

and landing on his right foot while delivering mail. He noted that he had previously broken his 

right ankle on June 26, 2012. Appellant was off work starting January 15, 2014. 

Dr. Thomas R. Turnbaugh, a Board-certified orthopedic surgeon, examined appellant on 

January 16, 2014 and described his history of injury. He noted that appellant had a previous 

right ankle injury. Dr. Turnbaugh reported that appellant’s foot was swollen, painful, and 

ecchymotic. He diagnosed probable partial rupture of the right anterior talofibular ligament and 

injury to the midfoot. Appellant underwent a magnetic resonance imaging (MRI) scan of his 

right ankle on January 27, 2014 which demonstrated tenosynovitis and a bone bruise with mild 

effusion along the posterior talotibial and subtalar articulations. On January 30, 2014 

Dr. Turnbaugh diagnosed bony injury to the right hindfoot and talus. 

On March 12, 2014 OWCP accepted appellant’s claim for contusion of the right foot and 

ankle. Appellant returned to light duty on March 20, 2014. Dr. Turnbaugh reported continuing 

pain and weakness of the peroneal tendons on the lateral side of appellant’s right hindfoot on 

June 5, 2014. 

Appellant filed a claim for compensation (Form CA-7) on September 12, 2014 requesting 

a schedule award. In a report dated September 4, 2014, Dr. Turnbaugh diagnosed evolving 

subtalar arthritis of the right hindfoot due to the January 2014 employment injury. He found that 

appellant had pain with varus and valgus stress to his heel and the tip of his fibula. 

Dr. Turnbaugh opined that appellant had 10 percent disability of his hindfoot as a result of his 

employment injury. 

In a letter dated September 24, 2014, OWCP requested additional medical evidence in 

support of appellant’s claim for a schedule award. Dr. Turnbaugh completed an additional note 

on September 12, 2014 and again opined that appellant had post-traumatic arthritis of the 

subtalar joint of the right foot due to his accepted employment injury. He indicated that 

appellant’s “disability” was 10 percent due to this condition. 

Appellant filed a second Form CA-7 requesting a schedule award on October 18, 2014. 

OWCP accepted unspecified arthropathy of the right foot and ankle as resulting from his 

employment injury on January 14, 2014. OWCP’s medical adviser reviewed Dr. Turnbaugh’s 

notes on December 12, 2014 and found that they were insufficient to meet appellant’s burden of 

proof. He requested a second opinion evaluation to determine appellant’s permanent impairment 

for schedule award purposes. 

OWCP referred appellant for a second opinion evaluation with Dr. Komes on 

January 2, 2015. In a report dated January 28, 2015, Dr. Komes described appellant’s history of 

injury and noted an ankle MRI scan had been scheduled. He found no swelling in appellant’s 

right ankle, with no fluid in the subtalar space. Appellant demonstrated normal strength, but pain 

at the ankle with resisted eversion on the right. His range of motion was 20 degrees of flexion 
3

and 40 degrees of extension, 20 degrees of varus hindfoot movement and 30 degrees of valgus 

hindfoot movement. Dr. Komes found no sensory deficits and intact reflexes. He diagnosed 

arthritis of the ankle and utilized Table 16-2 of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment2

 to find a class 1 impairment due to mild osteophytes with 

impingement. Dr. Komes noted that the clinical studies grade modifier was not applicable as 

these were used to make the diagnosis. He reported that the physical examination grade modifier 

was normal or zero, appellant’s functional history grade modifier was zero as he had discomfort, 

but was able to ambulate up to eight miles without difficulty and there was no evidence of 

antalgia on examination. Dr. Komes determined that appellant had grade A lower extremity 

impairment of one percent of the lower extremity. He determined that appellant reached 

maximum medical improvement on April 18, 2014. 

OWCP’s medical adviser reviewed the report of Dr. Komes on February 4, 2015 and 

agreed with his findings and conclusions. 

By decision dated March 12, 2015, OWCP granted appellant a schedule award for one 

percent of his right leg. Appellant requested a review of the written record from OWCP’s 

Branch of Hearings and Review on March 17, 2014. He argued that his condition would likely 

worsen in the future based on Dr. Turnbaugh’s reports requiring ankle fusion. Appellant further 

objected to Dr. Komes’ characterization of his ankle condition. He stated that he walked only six 

miles a day when he returned to work rather than eight, and was in constant pain. Appellant 

attributed his retirement to the pain and weakness in his ankle. 

By decision dated September 8, 2015, OWCP’s hearing representative found that 

Dr. Komes’ report was entitled to the weight of the medical evidence, that OWCP’s medical 

adviser agreed with this impairment rating and that appellant had no more than one percent 

impairment of his left lower extremity for which he received a schedule award. She noted that if 

appellant’s ankle condition worsened he could file for an additional schedule award and affirmed 

OWCP’s March 12, 2015 decision. 

LEGAL PRECEDENT 

The schedule award provision of FECA3

 and its implementing regulations4 set forth the 

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

loss of use of scheduled members or functions of the body. FECA, however, does not specify 

the manner in which the percentage loss of a member shall be determined. The method used in 

making such determination is a matter which rests in the discretion of OWCP. For consistent 

results and to ensure equal justice, the Board has authorized the use of a single set of tables so 

that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of 

 2

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

3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404. 
4

permanent impairment according to the standards set forth in the specified edition of the A.M.A., 

Guides.

5

 

The protocol and formula of the sixth edition of the A.M.A., Guides requires that the 

physician determine the Class of Diagnosis (CDX) for the lower extremity and apply the 

appropriate grade modifiers for Functional History (GMFH), Physical Examination (GMPE), and 

Clinical Studies (GMCS) and apply the following formula (GMFH-CDX) + (GMPE-CDX) + 

(GMCS–CDX) to reach the appropriate grade within the CDX.6

ANALYSIS 

 The Board finds this case not in posture for a decision. 

OWCP accepted appellant’s claim for contusion of the right foot and ankle as well as 

unspecified arthropathy of the right foot and ankle. Appellant requested a schedule award. In 

support of his schedule award claim, he submitted reports from Dr. Turnbaugh. The Board finds 

that these reports are insufficient to support appellant’s claim for an additional schedule award as 

Dr. Turnbaugh did not provide his findings and conclusions in accordance with the standards of 

the A.M.A., Guides. As Dr. Turnbaugh did not use the A.M.A., Guides to rate appellant’s right 

lower extremity impairment, his opinion is of diminished probative value.7

OWCP referred appellant for a second opinion evaluation with Dr. Komes due to the 

deficiencies in Dr. Turnbaugh’s report. Dr. Komes applied the A.M.A., Guides formula to his 

findings and utilized a diagnosis-based estimate based on arthritis to determine appellant’s 

permanent impairment. The Board notes that this diagnosis of ankle arthritis is dependent on 

x-ray studies demonstrating a cartilage interval of more than three millimeters as well as mild 

osteophytes with impingement.8 The only clinical study in the record is the January 27, 2014 

MRI scan which demonstrated tenosynovitis and a bone bruise with mild effusion along the 

posterior talotibial and subtalar articulations. Neither Dr. Komes nor the medical adviser 

explained how the diagnosis of subtalar or ankle arthritis under the A.M.A., Guides was selected. 

The Board further finds the reports not sufficiently well rationalized to support the diagnosis 

upon which impairment has been based. On remand OWCP should further develop the medical 

evidence by obtaining clarification of what clinical studies constitute the basis of the diagnosisbased estimate.9

 After this and such other development, OWCP should issue a de novo schedule 

award decision. 

 5

 For new decisions issued after May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides. 

A.M.A., Guides (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and 

Permanent Disability Claims, Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -- 

Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

6

 A.M.A., Guides 521. 

7 L.C., Docket No. 15-0512 (issued July 13, 2015). 

8

 A.M.A., Guides 506, Table 16-2. 

9 R.B., Docket No. 13-2072 (issued September 19, 2014). 
5

CONCLUSION 

The Board finds that this case is not in posture for a decision regarding appellant’s lower 

extremity impairment. 

ORDER 

IT IS HEREBY ORDERED THAT the September 8, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for 

proceedings consistent with this opinion of the Board. 

Issued: August 16, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board