United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bryan, OH, Employer 

__________________________________________ 

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Docket No. 16-0951 

Issued: December 19, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 April 4, 2016 appellant, through counsel, filed a timely appeal from a February 26, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

 (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 has established more than six percent permanent 

impairment of her right lower extremity, for which she received a schedule award. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 

20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. 

Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, 

subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of 

fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On September 21, 2012 appellant, then a 44-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that day she injured her right ankle when she fell while 

descending porch steps. She stopped work that same day. OWCP accepted the claim for closed 

bimalleolar fracture of the right ankle and closed dislocation of the right ankle. It paid 

appropriate benefits, which included a September 22, 2012 open reduction and internal fixation 

surgery on the right ankle and an October 11, 2013 hardware removal surgery, which were 

performed by Dr. Matthew Grothaus, a Board-certified orthopedic surgeon. Appellant returned 

to full-time limited duty on January 25, 2013 and full-time unrestricted work duties on 

February 19, 2014. She received wage-loss benefits on the supplemental rolls from November 1, 

2012 through February 18, 2013. Following the October 11, 2013 surgical removal of hardware, 

appellant returned to full-time unrestricted work duties. She received wage-loss benefits on the 

supplemental rolls again for intermittent periods from October 11, 2013 through March 20, 2015. 

On October 9, 2014 appellant filed a claim for a schedule award (Form CA-7). In a 

September 16, 2014 report, Dr. Grothaus indicated that appellant had reached maximum medical 

improvement (MMI) from her work-related conditions. 

In an October 24, 2014 letter, OWCP requested that appellant provide a medical report 

from her treating physician which addressed whether MMI had been reached and which provided 

an impairment rating according to the sixth edition of the American Medical Association, Guides 

to the Evaluation of Permanent Impairment3

 (hereinafter A.M.A., Guides). Appellant was 

afforded 30 days to provide such evidence. 

In a January 2, 2015 report, Dr. Catherine Watkins Campbell, a family practitioner, 

indicated that appellant was evaluated on November 20, 2014. She noted the history of injury 

and appellant’s medical course. Dr. Campbell reviewed the diagnostic evidence on file, which 

included September 21, 2012 and February 11, 2014 x-rays, and office notes from Dr. Grothaus. 

She provided physical examination findings and noted that appellant ambulated with a mildly 

antalgic gait, wore a hinged AFO brace, and did not utilize a cane. Dr. Campbell noted active 

range of motion of the right ankle. She also noted mild diffuse swelling of the right ankle, with 

mild lateral and medial joint laxity on the right, as well as a positive Tinel’s sign over the right 

medial right ankle, normal strength, and tenderness over the anterior tibialis tendon anterior to 

the medial surgical scar and the medial malleolus were further noted. 

Based on the sixth edition of the A.M.A., Guides, Dr. Campbell opined that appellant had 

13 percent right lower extremity impairment. Under Table 16-2, she found appellant had class 1 

mild malalignment for the conditions of bimalleolar fracture and dislocation of the ankle, which 

had a default value of 10 percent impairment. Based on the use of an orthotic device to stabilize 

an antalgic gait, Dr. Campbell assigned a functional modifier of grade 2. A physical examination 

modifier of grade 2 was assigned based on documented two-centimeter calf atrophy on the right 

side. No applicable clinical studies were found. The net adjustment formula (GMFH - CDX) (2-

1) + (GMPE - CDX) (2-1) + (GMCS - CDX) (N/A), yielded a net adjustment of 2, which 

 3

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

resulted in grade E impairment of 13 percent permanent impairment of the right lower extremity. 

Dr. Campbell concurred with Dr. Grothaus that appellant had reached MMI as of 

September 16, 2014. 

In a February 18, 2015 report, OWCP’s medical adviser reviewed the medical record and 

determined that the date of MMI was November 20, 2014, the date of Dr. Campbell’s 

impairment examination. He indicated that the February 11, 2014 x-ray interpreted by 

Dr. Grothaus demonstrated early arthritic changes most prominent to the medial gutter with 

preserved joint spaces. There was no mention of malalignment and range of motion was within 

normal limits. The medical adviser found the most impairing diagnosis in the right ankle region 

was bimalleolar fracture with normal range of motion and alignment and indicated that this 

diagnosis would be used for final impairment calculations. 

OWCP’s medical adviser explained that Dr. Campbell, in choosing the mild motion 

deficits and/or mild malalignment impairment class to rate appellant’s impairment for the 

impairing diagnosis, did not document appellant as having an antalgic gait which required the 

use of a single gait aid/external orthotic device for stabilization. He further explained that the 

A.M.A., Guides indicate that the diagnosis-based impairment method is the preferred rating 

method for the lower extremities and that the range of motion method would be used as a 

physical adjustment factor. The medical adviser reported that appellant’s range of motion 

equaled zero percent impairment when using Dr. Campbell’s findings. He found class 1 or five 

percent default impairment value for bimalleolar fracture with normal range of motion and 

alignment. Based on Dr. Campbell’s findings, the medical adviser found that appellant had 

grade 1 functional history grade modifier and grade 2 physical examination grade modifier with 

clinical studies grade modifier inapplicable. Under the net adjustment formula, he calculated a 

net adjustment of 1 or (GMFH - CDX) (1-1) + (GMPE - CDX) (2-1) + (GMCS - CDX) (N/A). 

This resulted in a class 1 or D grade permanent impairment of six percent. 

By decision dated May 13, 2015, OWCP issued a schedule award for six percent 

permanent impairment of the right lower extremity. The award ran for 17.28 weeks for the 

period November 20, 2014 through March 20, 2015. 

On May 19, 2015 OWCP received counsel’s May 18, 2015 request for a telephonic 

hearing before an OWCP hearing representative. On January 11, 2016 a telephonic hearing was 

held before an OWCP hearing representative. At the hearing, counsel disagreed with the medical 

adviser’s finding that appellant had normal alignment and argued that it was not based on a 

personal examination of appellant or documentation. He also argued that the medial adviser’s 

opinion was not rationalized. 

In a November 19, 2015 report, Dr. Grothaus provided an impression of right ankle posttraumatic osteoarthritis and right ankle peroneal tendon tear and discussed the medical treatment 

provided to appellant. 

In a December 16, 2015 report, Dr. Maggi Smith, a podiatrist, provided examination 

findings and noted that appellant ambulated without antalgic gait. An assessment of peroneal 

tendinitis, right leg; nondisplaced dome fracture of right talus, strain of muscle and tendon of 

long flexor muscle of toe at ankle and foot level, right foot; and osteochondritis dissecans, right 
4

ankle and joints of right foot was provided. Dr. Smith opined that the osteochondral defect in the 

talar dome and the tendon tear with ligament injury were directly proximate to the work injury 

and an ankle arthroscopy was required. 

By decision dated February 26, 2016, an OWCP hearing representative affirmed 

OWCP’s May 13, 2015 schedule award decision. She explained that, while counsel alleged that 

the district medical adviser (DMA) could not determine that appellant had normal gait because 

he did not examine appellant, OWCP policy allowed the DMA to base his opinion on the report 

of an examining physician. The DMA related that his rating was based on Dr. Campbell’s 

report, which did not explain that appellant actually had antalgic gait which required a 

stabilization device. The DMA had also properly reviewed x-rays dated September 21, 2012 and 

February 11, 2014 which showed satisfactory alignment and no malalignment. Therefore the 

hearing representative concluded that the DMA’s application of the grade modifier was not 

based on actual documentation of appellant’s physical findings of record. The hearing 

representative concluded that appellant had not met her burden of proof to establish an additional 

schedule award impairment greater than her previous award. 

LEGAL PRECEDENT 

The schedule award provisions of FECA4

 provide for compensation to employees 

sustaining impairment from loss or loss of use of specified members 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 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 a standard for evaluation of 

schedule losses and the Board has concurred in such adoption.5

 For schedule awards after 

May 1, 2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides, 

published in 2009.6

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).7

 Under the sixth edition, the evaluator identifies the impairment class for the 

diagnosed condition, which is then adjusted by grade modifiers based on GMFH, GMPE, and 

GMCS.8

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

 4

 5 U.S.C. § 8107; 20 C.F.R. § 10.404. 

5 See Bernard A. Babcock, Jr., 52 ECAB 143 (2000). 

6 See J.Y., Docket No. 14-1807 (issued March 9, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, 

Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 

7

 A.M.A., Guides 3, (6th ed. 2009), section 1.3, The International Classification of Functioning, Disability and 

Health (ICF): A Contemporary Model of Disablement. 

8

 A.M.A., Guides 494-531, (6th ed. 2009). 
5

Evaluators are directed to provide reasons for their impairment rating choices, including the 

choices of diagnoses from regional grids and calculations of modifier scores.9

Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower extremities, 

provides that diagnosis-based impairment is “the primary method of calculation for the lower 

limb” and that most impairments are based on the diagnosis-based impairment where impairment 

class is determined by the diagnosis and specific criteria as adjusted by the grade modifiers for 

functional history, physical examination, and clinical studies. 

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.10

ANALYSIS 

The Board finds that this case is not in posture for a decision regarding whether appellant 

has established more than six percent permanent impairment of her right lower extremity, for 

which she previously received a schedule award. 

OWCP accepted that appellant sustained closed bimalleolar fracture and closed 

dislocation of the right ankle. It granted appellant a schedule award for six percent permanent 

impairment of her right lower extremity. The award was based on the February 18, 2015 report 

of the DMA. It is appellant’s burden to submit sufficient evidence to establish the extent of her 

permanent impairment.11

In support of her claim, appellant submitted the January 2, 2015 report of Dr. Campbell, 

who opined that she had 13 percent permanent impairment of the right lower extremity. 

Dr. Campbell placed appellant in class 1 based on the diagnosis of mild malalignment12 for the 

conditions of bimalleolar fracture and dislocation of the ankle, which had a default value of 10 

percent permanent impairment according to Table 16-2, page 503, of the A.M.A, Guides. She 

assigned a functional modifier of grade 2 based on use of an orthotic device to stabilize an 

antalgic gait. Dr. Campbell assigned a physical examination modifier of grade 2 based on twocentimeter calf atrophy on the right side. Finally, she found that no modifier was applicable 

based on clinical studies. 

OWCP’s medical adviser reviewed Dr. Campbell’s medical report and concurred that the 

impairing diagnosis was bimalleolar fracture, but found that it was within normal range of 

 9 See R.V., Docket No. 10-1827 (issued April 1, 2011). 

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

Chapter 2.808.6(f) (February 2013). 

11 See T.T., Docket No. 15-0944 (issued March 22, 2015); see also Annette M. Dent, 44 ECAB 403 (1993). 

12 The description for class 1 diagnosis of ankle (malleolar, bimalleolar, trimalleolar) notes mild motion deficits 

and/or mild malalignment. 
6

motion and alignment. Based on Dr. Campbell’s physical findings, the medical adviser assigned 

grade 1 functional history grade modifier, a grade 2 physical examination grade modifier, and 

found the clinical studies grade modifier inapplicable. 

The difference between the two opinions, as to the extent of permanent impairment, is 

limited to the description of class 1 impairment for ankle bimalleolar as nondisplaced with 

minimal findings as found by the medical adviser or mild motion deficits and/or mild 

malalignment as found by Dr. Campbell, and the respective functional history grade modifier. 

 Under Table 16-2, page 503 a class 1 diagnosis for bimalleolar diagnosis is divided into 

either an impairment which is nondisplaced with minimal findings or an impairment with mild 

motion deficits and/or mild malalignment. OWCP’s medical adviser placed appellant into the 

former category, while Dr. Campbell placed appellant into the latter category. The Board notes 

that Dr. Campbell based her opinion on a mild malalignment description of appellant’s ankle 

upon her examination of appellant. The medical adviser reviewed the medical records and found 

that appellant’s range of motion equaled zero percent impairment when using Dr. Campbell’s 

findings. Dr. Campbell, in choosing the mild motion deficits and/or mild malalignment 

impairment class to rate appellant’s impairment for the impairing diagnosis, noted that appellant 

was wearing a brace to stabilize her ankle, but she did not specifically note that appellant had an 

observed antalgic gait or that she required the use of a single gait aid/external orthotic device for 

stabilization. OWCP’s medical adviser noted that the February 11, 2014 x-rays interpreted by 

Dr. Grothaus demonstrated some early arthritic changes prominent to the medial gutter, but there 

was no observation of malalignment in the report. 

 The Board finds that Dr. Campbell’s report contains a history of injury, consistent 

medical diagnosis, consistent and detailed physical findings, and an opinion that appellant had 

demonstrable loss of function upon physical evaluation. Her report differs from the DMA only 

as to the modifier of minimal versus mild for functional history. The difference of opinion 

between Dr. Campbell and the DMA is created by the DMA’s interpretation of the medical 

reports authored by Dr. Campbell and Dr. Grothaus. The Board notes that he relies upon his 

interpretation of appellant’s physical findings based on what the examining physicians’ failed to 

denote in their medical reports, but Dr. Campbell has provided sufficient findings and rationale 

so as to require further development by OWCP.13 For this reason the Board finds that the case is 

not in posture for decision. On remand OWCP shall refer appellant, together with the case 

record and a statement of accepted facts, to an appropriate specialist for a second opinion 

examination to determine the extent of permanent impairment of her right lower extremity based 

upon a new physical examination. 

 It is well established that proceedings under FECA are not adversarial in nature and while 

the claimant has the burden of establishing entitlement to compensation, OWCP shares 

responsibility in the development of the evidence to see that justice is done.14

 13 E.J., Docket No. 09-1481 (issued February 19, 2010). 

14 John J. Carlone, 41 ECAB 354 (2006). 
7

CONCLUSION 

The Board finds that this case is not in posture for a decision as to whether appellant has 

more than six percent permanent impairment of her right lower extremity, for which she received 

a schedule award. 

ORDER 

IT IS HEREBY ORDERED THAT the February 26, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action 

consistent with this decision of the Board. 

Issued: December 19, 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