United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Hamburg, NY, Employer 

__________________________________________ 

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Docket No. 16-1499 

Issued: December 16, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 July 14, 2016 appellant filed a timely appeal from a May 16, 2016 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 permanent impairment 

of his left lower extremity, warranting a schedule award. 

FACTUAL HISTORY 

OWCP accepted that on September 3, 2013 appellant, then a 33-year-old city carrier 

assistant, sustained a left ankle sprain, contracture of a joint of the left lower leg, left contracture 

 1

 5 U.S.C. § 8101 et seq.
2

of a tendon (sheath), enthesopathy of the left ankle and tarsus, and left tibialis tendinitis when he 

rolled his left ankle as he carried mail while walking across a lawn. 

Appellant stopped work on the date of injury. He returned to full-time modified-duty 

work on September 5, 2013, but stopped work again on September 14, 2013.2

 On October 5, 

2013 appellant returned to part-time, limited-duty work, but stopped work again on December 9, 

2013 when his appointment expired. He returned to full-time, modified-duty work on 

March 7, 2015, but stopped work again on April 6, 2015 and filed a claim for a recurrence of 

disability (Form CA-2a). OWCP denied appellant’s recurrence claim on September 30, 2015. 

Appellant returned to full-time modified work on May 20, 2015. 

On April 5, 2016 appellant filed a claim for a schedule award (Form CA-7) and submitted 

medical evidence. In an April 14, 2015 functional capacity evaluation (FCE), a registered 

occupational therapist, noted that he had occasional complaints of left ankle and low back pain 

and pain behaviors during the test procedure. She found that appellant demonstrated the ability 

to perform medium physical demand level work. Appellant did not demonstrate the ability to 

perform all of the physical demand levels required of a mail carrier. He reported an attempt to 

perform light-duty work for approximately one month ending approximately one week prior to 

his evaluation, but he was unable to tolerate the physical work demands. The occupational 

therapist recommended that appellant undergo vocational counseling if the employing 

establishment could not accommodate him at his present level of function. 

In an April 5, 2016 duty status report (Form CA-17), Dr. Jennifer Gurske-Deperio, an 

attending orthopedic surgeon, diagnosed posterior tibialis tendon tear. Dr. Gurske-Deperio 

opined that appellant could perform regular full-duty work based on an FCE. 

By letter dated April 13, 2016, OWCP advised appellant of the deficiencies of his claim 

and requested a medical report from his physician assessing his permanent impairment based on 

the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides) and establishing the date that he had reached maximum medical 

improvement (MMI). Appellant was afforded 30 days to submit the requested information. He 

did not respond. 

In a May 16, 2016 decision, OWCP denied appellant’s claim for a schedule award. It 

found that the medical evidence of record failed to demonstrate a measurable impairment related 

the accepted September 3, 2013 employment injuries. OWCP noted that appellant did not 

respond to the April 13, 2016 development letter. 

LEGAL PRECEDENT 

The schedule award provision of FECA3

 and its implementing regulations set forth the 

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

 2

 On January 17, 2014 OWCP accepted that appellant sustained a recurrence of disability effective 

September 14, 2013. 

3

 5 U.S.C. § 8107. 
3

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

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

method used in making such determination is a matter which rests in the sound 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. The 

A.M.A., Guides has been adopted by OWCP as the appropriate standards for evaluating schedule 

losses.4

Before the A.M.A., Guides can be utilized, a description of impairment must be obtained 

from the claimant’s physician. In obtaining medical evidence required for a schedule award, the 

evaluation made by the attending physician must include a description of the impairment 

including, where applicable, the loss in degrees of active and passive motion of the affected 

member or function, the amount of any atrophy or deformity, decreases in strength or 

disturbance of sensation, or other pertinent descriptions of the impairment. This description 

must be in sufficient detail so that the claims examiner and others reviewing the file will be able 

to clearly visualize the impairment with its resulting restrictions and limitations.5

ANALYSIS 

The Board finds that appellant has not established any permanent impairment of his left 

lower extremity. OWCP accepted his claim for left ankle sprain, contracture of a joint of the left 

lower leg, left contracture of a tendon (sheath), enthesopathy of the left ankle and tarsus, and left 

tibialis tendinitis as a result of a September 3, 2013 employment injury. 

In support of his claim, appellant submitted an April 5, 2016 Form CA-17 report 

completed by Dr. Gurske-Deperio, an attending physician, who diagnosed posterior tibialis 

tendon tear. Dr. Gurske-Deperio found that he could perform regular full-duty work based on an 

FCE. Her report offered no medical opinion as to whether appellant had reached MMI or 

sustained any left lower impairment causally related to the accepted left ankle and left leg 

conditions based on his application of the A.M.A., Guides. The evaluation made by Dr. GurskeDeperio must include a description of the impairment that is in sufficient detail so that the claims 

examiner and others reviewing the file will be able to clearly visualize the impairment with its 

resulting restrictions and limitations.6

 As her report did not discuss MMI or any employmentrelated left lower extremity impairment, it is of diminished probative value and insufficient to 

establish appellant’s entitlement to a schedule award. 

Appellant also submitted an FCE report dated April 14, 2015. This was completed by a 

registered occupational therapist. An occupational therapist is a lay individual and is not 

 4

 20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

5 Vanessa Young, 55 ECAB 575 (2004). 

6 Id. 
4

competent to render a medical opinion under FECA.7

 The FCE is therefore of no probative 

value regarding appellant’s impairment. 

By letter dated April 13, 2016, OWCP notified appellant of the deficiencies of his claim 

and requested additional evidence, including a detailed description of any permanent impairment 

and a final impairment rating. Appellant did not respond. He did not submit any medical 

evidence to establish that, under the A.M.A., Guides, he sustained a permanent impairment due 

to his accepted work injuries. The Board finds that appellant did not meet his burden of proof to 

establish that he is entitled to a schedule award as a result of his employment-related left ankle 

and left leg conditions. 

Appellant may request a schedule award or increased schedule award at any time based 

on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment. 

CONCLUSION 

The Board finds that appellant has not met his burden of proof to establish permanent 

impairment of his left lower extremity, warranting a schedule award. 

 7 David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). 5 U.S.C. § 8101(2) of FECA provides that physician 

includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic 

practitioners within the scope of their practice as defined by State law. See Roy L. Humphrey, 57 ECAB 238 (2005). 
5

ORDER 

IT IS HEREBY ORDERED THAT the May 16, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 16, 2016 

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