United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Coppell, TX, Employer 

__________________________________________ 

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Docket No. 15-1740 

Issued: January 28, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 18, 2015 appellant filed a timely appeal of a May 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) and 501.3, the Board has jurisdiction to 

consider the merits of the case. 

ISSUE 

The issue is whether appellant has met her burden of proof to establish more than one 

percent permanent impairment of her left lower extremity for which she received a schedule 

award. 

FACTUAL HISTORY 

On March 3, 2007 appellant, then a 46-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she sustained a left ankle strain or sprain on that date when she 

 1

 5 U.S.C. § 8101 et seq.
2

had a misstep from a curb, lost her balance, and fell in the performance of duty. OWCP accepted 

her claim for left ankle sprain on March 30, 2007. 

Appellant filed a recurrence of disability claim (Form CA-2a) on February 28, 2010 and 

alleged that she sustained a recurrence of her ankle condition on December 29, 2009. She 

alleged that she had developed a heel spur as a result of her 2007 employment injury. A left heel 

x-ray on January 21, 2010 demonstrated a small heel spur. OWCP accepted the recurrence claim 

on April 6, 2010. 

Appellant underwent a left ankle magnetic resonance imaging (MRI) scan on May 10, 

2010 which demonstrated peritendinitis and tenosynovitis of the posterior tibialis and peroneus 

tendons. The MRI scan also demonstrated narrow edema in the calcaneus at the insertion of the 

plantar fascia with thickening of the plantar fascia. 

Dr. John T. Wey, a Board-certified orthopedic surgeon, examined appellant on June 16, 

2010 and described her history of injury. He diagnosed chronic plantar fasciitis left foot, plantar 

heel spur left foot, and distal tarsal syndrome left foot. Dr. Wey opined that appellant had been 

hurting for three years and recommended surgery. Appellant underwent partial plantar 

fasciectomy surgery on February 23, 2011. 

Dr. Diane S. Litke, a Board-certified orthopedic surgeon, examined appellant on 

November 18, 2011 and relayed her history of injury. She noted appellant’s surgery on 

February 23, 2011 and reported appellant’s complaints of pain. Dr. Litke found palpatory 

tenderness over the left foot and ankle as well as full range of motion of the left ankle and foot. 

OWCP accepted plantar fibromatosis, calcaneal spur, tarsal tunnel syndrome, and 

mononeuritis on the left on April 6, 2012. Appellant returned to work on July 14, 2014. 

Dr. Litke examined appellant on November 21, 2013 and repeated her earlier findings. 

She recommended physical therapy. 

Dr. Wey examined appellant on October 13, 2014 and found no signs of muscle atrophy 

in the left ankle and foot. He reported swelling in appellant’s anterolateral ankle with tenderness 

in the lateral gutter and peroneal. Dr. Wey listed appellant’s range of motion as 14 degrees of 

dorsiflexion, 68 degrees of plantar flexion, 14 degrees of inversion, and 28 degrees of eversion. 

He found that strength testing was normal as was stability testing. Dr. Wey reported normal gait, 

no signs of rheumatoid arthritis, and symmetrical reflexes. Sensory testing for light touch was 

decreased in the lateral dorsal left foot. Appellant demonstrated a positive Tinel’s sign in the 

superficial peroneal nerve and the deep peroneal nerve in the left ankle. Dr. Wey diagnosed 

plantar fasciitis and mononeuritis unspecified. Appellant filed a claim for compensation (Form 

CA-7) requesting a schedule award on October 14, 2014. 

Dr. Les Benson, Board-certified in emergency medicine, examined appellant on 

October 24, 2014 and found that she had reached maximum medical improvement. He described 

appellant’s history of injury. Dr. Benson provided appellant’s left ankle range of motion as 17 

degrees of plantar flexion, 12 degrees of dorsal flexion, 20 degrees of inversion and 7 degrees of 

eversion. He diagnosed left plantar fibromatosis, left calcaneal spur, left tarsal tunnel syndrome, 

and left mononeuritis. Dr. Benson opined that appellant’s permanent impairment was best 
3

determined by range of motion impairment. He found that less than 20 degrees of plantar flexion 

was seven percent impairment,2 20 degrees of any inversion was two percent impairment,3 and 

that less than 10 degrees of ankle eversion was two percent impairment.4 Dr. Benson also found 

that appellant’s 12 degrees of ankle extension was equivalent to less than 10 degrees and 

awarded her two percent impairment.5 He totaled these impairments and found that appellant 

had 11 percent impairment based the American Medical Association, Guides to the Evaluation of 

Permanent Impairment.6

An OWCP medical adviser reviewed the record on November 13, 2014 and disagreed 

regarding appellant’s physical findings between Dr. Litke and Benson. He recommended a 

second opinion evaluation. 

On February 18, 2015 OWCP referred appellant for a second opinion evaluation with 

Dr. James E. Butler, III, a Board-certified orthopedic surgeon. 

Dr. Butler completed an examination on February 18, 2015 and reviewed the statement of 

accepted facts. He found that palpation of the left ankle revealed tenderness. Dr. Butler found 

that appellant had reached maximum medical improvement and diagnosed left ankle sprain, left 

plantar fasciitis, and left foot tarsal tunnel release. He found that appellant’s range of motion 

was within normal limits with plantar flexion of 22, 25, and 23 degrees and dorsiflexion of 12, 

13, and 12 degrees. Appellant demonstrated inversion of 22, 26, and 24 degrees as well as 

eversion of 13, 12, and 13 degrees. Dr. Butler utilized the diagnosis-based estimates and found 

that appellant had a class 1 impairment7

 with grade 1 functional history,8 physical examination,9

and clinical studies grade modifiers.10 After applying the net adjustment formula, Dr. Butler 

determined that appellant had a default grade C or one percent impairment of the left lower 

extremity. 

On February 25, 2015 appellant submitted a report by Dr. Wey, who examined appellant 

on February 2, 2015 and provided range of motion figures including 10 degrees of dorsiflexion, 

66 degrees of plantar flexion, 20 degrees of ankle inversion and 30 degrees of ankle eversion. 

Only 20 degrees of ankle inversion is a ratable impairment under the A.M.A., Guides.

11 Dr. Wey 

 2

 A.M.A., Guides 549, Table 16-22. 

3 Id. at Table 16-20. 

4 Id.

5 Supra note 2. 

6 Id. at 529 (6th ed. 2009). 

7 Id. at 501, Table 16-2. 

8 Id. at 516, Table 16-6. 

9 Id. at 517, Table 16-7. 

10 Id. at 519, Table 16-8. 

11 Supra note 3. 
4

continued to report positive Tinel’s sign at the superficial peroneal nerve and deep peroneal 

nerve in the left ankle as well as tarsal tunnel syndrome in the left foot. 

An OWCP medical adviser reviewed this report on April 2, 2015 and agreed with 

Dr. Butler’s assessment. He noted that Dr. Butler’s measurements of ankle and hind foot motion 

would result in no impairment for loss of range of motion. 

By decision dated May 8, 2015, OWCP granted appellant a schedule award for one 

percent permanent impairment of her left lower extremity. 

LEGAL PRECEDENT 

The schedule award provision of FECA12 and its implementing regulations13 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 

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

Guides.

14 

In addressing lower extremity impairments, the sixth edition requires identifying the 

impairment Class of Diagnosis (CDX) condition, which is then adjusted by grade modifiers 

based on Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies 

(GMCS). The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).15

ANALYSIS 

Appellant sustained an ankle sprain, plantar fibromatosis, calcaneal spur, tarsal tunnel 

syndrome, and mononeuritis on the left due to her March 3, 2007 employment injury. She 

submitted a report from Dr. Benson, dated October 24, 2014, finding that she had reached 

maximum medical improvement. Dr. Benson provided appellant’s left ankle range of motion as 

17 degrees of plantar flexion, 12 degrees of dorsal flexion, 20 degrees of inversion, and 7 

degrees of eversion. He provided an impairment rating based on range of motion based on his 

findings. The Board notes that Dr. Benson’s range of motion deficits for the left ankle and hind 

foot far exceeded those provided by appellant’s other attending physicians, Drs. Litke and Wey. 

 12 5 U.S.C. §§ 8101-8193, 8107. 

13 20 C.F.R. § 10.404. 

14 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); see also, Part 3 -- Medical, Schedule Awards, 

Chapter 3.700, Exhibit 1 (January 2010). 

15 A.M.A., Guides 521. J.B., Docket No. 09-2191 (issued May 14, 2010). 
5

Dr. Litke found that appellant had normal range of motion, while Dr. Wey, reported limited 

inversion of 20 degrees, two percent impairment.16 Dr. Benson also awarded two percent 

impairment due to 12 degrees of ankle extension a nonratable impairment under the A.M.A., 

Guides.

17 For these reasons, the Board finds that Dr. Benson’s report is of diminished probative 

value and does not establish 11 percent permanent impairment of the left lower extremity. 

The Board finds, however, a conflict of medical opinion regarding the extent of 

appellant’s permanent impairment between Drs. Butler and Wey. As previously noted, 

Dr. Wey’s findings support that appellant had two percent permanent impairment due to loss of 

range of motion of 20 degrees of inversion. Dr. Butler, the second opinion physician, found that 

appellant had inversion of 22, 26, and 24 degrees, not a ratable impairment under the range of 

motion method and accorded appellant one percent permanent impairment based on the 

diagnosis-based estimates. Due to the disagreement between the objective findings submitted by 

appellant’s physician and a physician for OWCP, the Board finds a conflict of medical evidence 

on the extent of appellant’s permanent impairment for schedule award purposes. When there are 

opposing reports of virtually equal weight and rationale, the case will be referred to an impartial 

medical specialist pursuant to section 8123(a) of FECA which provides that, if there is 

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 and resolve the conflict of medical evidence.18 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.19 On remand, OWCP should refer appellant to an appropriate 

physician to resolve the existing conflict of medical evidence. Following this and any necessary 

further development, OWCP shall issue a de novo decision. 

CONCLUSION 

The Board finds that this case is not in posture for a decision. There is an existing 

conflict of medical evidence regarding the extent of appellant’s permanent impairment for 

schedule award purposes. 

 16 Supra note 3. 

17 Supra note 2. 

18 5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006). 

19 R.C., 58 ECAB 238 (2006). 
6

ORDER 

IT IS HEREBY ORDERED THAT the May 8, 2015 decision of the Office of Workers’ 

Compensation Programs is set aside and remanded for further development consistent with this 

opinion of the Board. 

Issued: January 28, 2016 

Washington, DC 

 

 Christopher J. Godfrey, 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