United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.S., Appellant 

and 

OFFICE OF PERSONNEL MANAGEMENT, 

FEDERAL INVESTIGATIVE SERVICES, 

Los Angeles, CA, Employer 

__________________________________________ 

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Docket No. 15-1536 

Issued: April 19, 2016 

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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 7, 2015 appellant, through counsel, filed a timely appeal from a March 24, 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 review the merits of this case. 

ISSUE 

The issue is whether appellant has more than two percent permanent impairment of her 

left lower extremity. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On May 12, 2011 appellant, a 50-year-old special agent, sustained a traumatic injury in 

the performance of duty when she twisted her ankle on uneven pavement and fell to the ground. 

OWCP accepted her claim for left ankle sprain and authorized surgery. 

Appellant underwent surgery to repair a torn peroneal brevis tendon and a torn peroneal 

retinaculum. On October 21, 2013 OWCP issued appellant a schedule award for one percent 

permanent impairment of her left lower extremity. 

Dr. Jacob E. Tauber, a Board-certified orthopedic surgeon, evaluated appellant on 

January 14, 2014. He noted that she walked with a slight limp. Dr. Tauber also noted a healed 

scar over the lateral aspect of appellant’s left ankle with tenderness. He noted pain with motion. 

Appellant had 1.25 inches of atrophy at the left calf compared to the right. X-rays were negative. 

Dr. Tauber opined that appellant had five percent permanent impairment of her left lower 

extremity due to weakness, according to the American Medical Association, Guides to the 

Evaluation of Permanent Impairment 501 (6th ed. 2009) (Table 16-2, Foot and Ankle Regional 

Grid). He stated, “Please note that the patient does not have a motion deficit but does have 

weakness. This patient has atrophy of the calf.” 

An OWCP medical adviser reviewed Dr. Tauber’s report and noted that, although 

appellant had atrophy, Dr. Tauber had not documented muscle weakness or any instability. In 

the absence of motion deficit or discrete muscle weakness, he explained that appellant would not 

be entitled to a rating of five percent under Table 16-2, page 501 of the A.M.A., Guides. The 

medical adviser found that appellant was entitled to an additional one percent rating due to her 

antalgic gait, which was not present when she received her first schedule award. He therefore 

concluded that appellant had a two percent permanent impairment of her left lower extremity. 

On June 10, 2014 OWCP issued a schedule award for a two percent impairment of 

appellant’s left lower extremity, representing an additional one percent above the schedule award 

previously paid. 

By decision dated March 24, 2015, an OWCP hearing representative affirmed the 

additional schedule award. She noted that Dr. Tauber had not reported any muscle strength 

testing, and added that objective findings are given greater weight than subjective findings. The 

hearing representative found that the opinion of OWCP’s medical adviser constituted the weight 

of the medical evidence. 

LEGAL PRECEDENT 

The schedule award provision of FECA2

 and the implementing regulations3 set forth the 

number of weeks of compensation payable for permanent impairment from loss or loss of use of 

scheduled members or functions of the body. FECA, however, does not specify the manner in 

 2

 5 U.S.C. § 8107. 

3

 20 C.F.R. § 10.404. 
3

which the percentage of loss shall be determined. The method used in making such a 

determination is a matter that rests within the sound discretion of OWCP.4

For consistent results and to ensure 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. OWCP has adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.5

 As of May 1, 2009, the sixth edition of the A.M.A., 

Guides is used to calculate schedule awards.6

ANALYSIS 

Diagnosis-based impairment is the primary method of evaluating the lower extremity. 

Impairment is determined first by identifying the relevant diagnosis, then by selecting the class 

of impairment: no objective problem, mild problem, moderate problem, severe problem, or very 

severe problem approaching total function loss. This will identify the default impairment rating, 

which can then be adjusted slightly up or down using functional history, physical examination, 

and clinical studies grade modifiers.7

OWCP accepted appellant’s claim for left ankle sprain and authorized surgery to repair a 

torn peroneal brevis tendon and a torn peroneal retinaculum. The A.M.A., Guides explains that 

in most cases only one diagnosis in a region will be appropriate. If a patient has two significant 

diagnoses, the examiner should use the diagnosis with the highest impairment rating in that 

region that is causally related for the impairment calculation.8

Appellant’s torn peroneal retinaculum would be rated as a ligament injury under Table 

16-2, page 502 of the A.M.A., Guides.

9

 But such a rating requires at least some degree of 

clinical instability or ligamentous laxity, and Dr. Tauber, the evaluating orthopedic surgeon, 

reported neither. As there is no basis for rating impairment for the torn peroneal retinaculum, 

appellant’s impairment should be rated for the accepted left ankle sprain, or more specifically, 

her torn peroneal brevis tendon. 

Muscle and tendon injuries are rated under Table 16-2, page 501 of the A.M.A., Guides.

10 

The Foot and Ankle Regional Grid has a special entry for history of ruptured tendon specifically 

involving the peroneal tendon. As Dr. Tauber did not report flexible or fixed deformity and loss 

 4 Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986). 

5

 20 C.F.R. § 10.404; Ronald R. Kraynak, 53 ECAB 130 (2001). 

6

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

Chapter 2.808.6a (January 2010). 

7

 A.M.A., Guides 497. 

8 Id. 

9 Id. at 502. 

10 Id. at 501. 
4

of specific tendon function, appellant’s impairment falls under the class 1 or mild problem 

category. He confirmed this with his impairment rating of five percent. 

There are three levels of class 1 impairments, and appellant’s placement depends on 

whether she merely had palpatory or radiographic findings (default impairment value of one 

percent), mild motion deficits, (default impairment value of five percent) or moderate motion 

deficits and/or significant weakness (default impairment value of 10 percent).11 Dr. Tauber 

noted a healed scar over the lateral aspect of her left ankle with tenderness, which is a palpatory 

finding. He made clear that appellant had no motion deficits, but he added that she did have 

weakness. 

As OWCP noted, Dr. Tauber did not document appellant’s weakness. He gave no 

indication whether or how he evaluated it. Furthermore, for purposes of placing appellant’s 

impairment in the regional grid, Dr. Tauber did not explicitly find that the weakness was 

significant. OWCP therefore correctly discounted the finding and placed appellant in the class 1 

category of palpatory findings, with a default impairment value of one percent. 

Dr. Tauber noted that appellant walked with a slight limp. As this was absent from her 

earlier schedule award evaluation, OWCP’s medical adviser adjusted the default impairment 

value to two percent based on functional history. This is not supported under Table 16-6, 

page 516.12 A slight limp, by itself, is regarded as a mild gait derangement, something that does 

not warrant an increase in the default impairment value. To justify an increase, there must be 

evidence of a moderate gait derangement, such as the routine use of a cane or crutch for 

ambulatory stability. Dr. Tauber made no mention of a cane or crutch, nor did he otherwise 

explain how appellant’s gait derangement satisfied the criteria of a class 2 moderate problem. 

Under the circumstances, OWCP’s medical adviser erred in adjusting the default 

impairment value to two percent based on functional history. Nonetheless, it is clear that 

appellant does not have more than two percent permanent impairment of her left lower 

extremity, which is what OWCP awarded. On that basis, the Board will affirm OWCP’s 

March 24, 2015 decision. 

CONCLUSION 

The Board finds that appellant has no more than two percent permanent impairment of 

her left lower extremity. 

 11 Id.

12 Id. at 516. 
5

ORDER 

IT IS HEREBY ORDERED THAT the March 24, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 19, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board