United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.B., Appellant 

and 

U.S. POSTAL SERVICE, GRACELAND 

STATION, Chicago, IL , Employer 

__________________________________________ 

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Docket No. 14-1689 

Issued: July 2, 2015 

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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 4, 2014 appellant filed a timely appeal from an April 7, 2014 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 sustained a permanent impairment greater than 23 percent 

to her right lower extremity and 16 percent to her left lower extremity, for which she received 

schedule awards. 

On appeal, appellant contends that the questions submitted to the second opinion 

physician and OWCP medical adviser were prejudicial to her; that the second opinion physician 

and OWCP medical adviser ignored the issue of arthritis and other residuals from her injury; and 

 1

 5 U.S.C. § 8101 et seq. 
2

that OWCP inappropriately ignored the recommended additional impairment and issued a 

decision that it knew to be incorrect. 

FACTUAL HISTORY 

On January 22, 1992 appellant, then a 35-year-old city carrier, filed a traumatic injury 

claim alleging that on January 15, 1992 she sustained an injury to the bottom of her right foot 

when both feet were frozen and she put her right foot down a step, causing a sharp pain. On 

September 2, 1992 OWCP accepted her claim for bilateral frostbite in her foot. It later accepted 

appellant’s claim for bilateral plantar fibromatosis. 

Appellant had previously filed a claim for a traumatic injury that occurred on 

April 12, 1985 when she felt pain while lifting cases onto a table from a pallet on the floor while 

employed as a commodity grader with the Department of Agriculture. This claim was accepted 

for lumbosacral strain.2

 Appellant had a separate claim for a traumatic injury of December 26, 

1998 that was accepted by OWCP for right knee contusion, right knee strain, and right knee 

chondromalacia resulting from falling on a slippery concrete floor when exiting a locker room 

while employed as a rehabilitation letter carrier.3

OWCP has previously issued multiple schedule awards for impairments to appellant’s 

left and right lower extremities. As of the date of its November 7, 2008 schedule award, it had 

issued schedule awards totaling 13 percent for appellant’s left lower extremity and 20 percent for 

appellant’s right lower extremity. 

In an August 27, 2009 report, Dr. Raja K. Khuri, a physician Board-certified in internal 

medicine and occupational medicine, diagnosed appellant with bilateral plantar fasciitis; 

Morton’s neuroma in left foot; osteoarthritis right knee, status post menisectomy; and 

chondromalacia patella. In an August 28, 2009 permanent impairment worksheet, he determined 

that appellant had 12 percent impairment of her right lower extremity pursuant to the sixth 

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

Impairment (A.M.A., Guides). 

In an October 2, 2009 letter to appellant, OWCP noted that although the newly submitted 

medical evidence indicates that appellant had 12 percent impairment to the right lower extremity, 

she had already been paid a total of 20 percent permanent impairment of the right lower 

extremity in this case, and therefore no additional schedule award was due at this time. 

On December 8, 2009 appellant filed a claim for an additional schedule award. 

In a December 8, 2009 report, Dr. Khuri noted that in the initial diagnosis he only 

mentioned Morton’s neuroma in appellant’s left foot, but that she also has strong clinical 

evidence for Morton’s neuroma in the right foot. He noted subjective interdigital pain in third 

 2

 OWCP Docket No. xxxxxx224. 

3

 OWCP Docket No. xxxxxx040. The record reveals that appellant resigned from the employing establishment 

on February 4, 2002. 
3

and fourth metatarsals and objective findings of point tenderness over interdigital area of the 

right foot at the third and fourth metatarsals. Dr. Khuri noted pain on squeezing the right foot. 

He also noted bilateral tibial nerve entrapment neuropathies at the level of the ankle, right greater 

than left. Dr. Khuri noted that the impairment ratings in the lower extremities that he listed were 

separate from and in addition to the prior provided 20 percent impairment for the right lower 

extremity and 13 percent for the left lower extremity. 

Dr. Khuri sent an updated permanent impairment worksheet wherein he listed appellant’s 

diagnoses as Morton’s neuroma, plantar fasciitis, tibial tunnel syndrome, and chondromalacia 

patella. He then evaluated appellant’s bilateral impairment to her lower extremities. Dr. Khuri 

noted that, pursuant to Table 16-2 of the A.M.A., Guides, appellant had a class 1 impairment due 

to “soft tissue knee” with grade modifiers of 2 for functional history, 1 for physical examination 

and 1 for clinical studies. He then found a grade D impairment which equaled a lower extremity 

impairment of four percent. Dr. Khuri noted that, pursuant to Table 16-3, appellant had a soft 

tissue injury class 1 with modifiers for functional history of 2, physical examination of 2 and 

clinical studies of 2, for a grade E impairment, or three percent impairment of the lower 

extremity. He also used Table 16-3 for another soft tissue with grade modifiers of 2 each for 

functional history, physical examination, and clinical studies resulting in a grade E impairment 

of five percent. Adding these figures together, Dr. Khuri determined that appellant had 12 

percent bilateral impairment to the lower extremities. With regard to peripheral nerve 

impairment, he found that, pursuant to Table 16-2 on page 536 of the A.M.A., Guides, 

appellant’s sensory impairment of the right and left tibial for a grade 3 class 1 impairment, and 

that, after grade modifiers of 2 for functional history, and clinical studies, appellant’s impairment 

was a grade C, or six percent impairment. Dr. Khuri then determined that there was a total 12 

percent impairment for diagnosis-based impairment and 6 percent impairment for peripheral 

nerve, for a bilateral lower extremity impairment of 18 percent. 

In a February 10, 2010 report, an OWCP medical adviser, Dr. Neil Ghodadra, a Boardcertified orthopedic surgeon, noted that Dr. Khuri’s additional impairment ratings were given on 

the basis of the additional diagnoses of tarsal tunnel syndrome and bilateral Morton’s neuroma. 

However, he noted that OWCP was yet to accept these conditions as a work-related injury and 

thus they should not be used in the additional permanent impairment determination. 

Dr. Ghodadra concluded that as such, the original permanent impairment ratings of 20 percent of 

the right lower extremity and 13 percent impairment of the left lower extremity and further 

permanent partial impairment cannot be awarded until the claims of bilateral Morton’s neuroma 

and tarsal tunnel syndromes are accepted as work related. 

By letter dated May 27, 2011, OWCP asked Dr. Ghodadra to determine whether bilateral 

tarsal syndrome and Morton’s neuroma are consequential to the accepted conditions of bilateral 

frostbite and plantar fascial fibromatosis. It also asked for an opinion with regard to permanent 

impairment. 

In a June 2, 2011 report, Dr. Ghodadra, noted that appellant had already received 

schedule awards for 20 percent impairment of the right lower extremity and 13 percent 

impairment of the left lower extremity. He concluded that bilateral tarsal tunnel syndrome and 

Morton’s neuroma are consequential to the accepted conditions of bilateral frostbite and plantar 

fascial fibromatosis. Dr. Ghodadra then determined that according to Table 16-12 of the 
4

A.M.A., Guides, appellant’s history of tarsal tunnel syndrome corresponds to a default grade C 

rating of three percent due to sensory impairment. According to Table 16-12 of the A.M.A., 

Guides, appellant’s history of Morton’s neuroma corresponds to a one percent permanent 

impairment based on a grade A rating due to mild symptoms. Adding 4 percent to each prior 

rating, he determined that appellant now has 24 percent impairment of the left lower extremity 

and 17 percent impairment of the right lower extremity. 

On July 15, 2011 OWCP expanded appellant’s claim to include acceptance for bilateral 

tarsal tunnel syndrome and bilateral lesion of the plantar nerve. 

In a letter to appellant dated October 6, 2011, OWCP noted that appellant’s claim was 

processed initially based upon Dr. Ghodadra’s report of June 2, 2011. It noted that, following 

further review, it determined that Dr. Ghodadra’s report was drafted in error. OWCP explained 

that an OWCP medical adviser was not provided with relevant medical information about 

appellant’s other claim, No. xxxxxx224, and that as a result the schedule award claim was 

deferred. 

On January 30, 2012 OWCP referred appellant’s claim to an OWCP medical adviser and 

asked for a determination on impairment to the bilateral lower extremities pursuant to the sixth 

edition of the A.M.A., Guides. In a response dated February 6, 2012, Dr. David H. Garelick, a 

physician Board-certified in orthopedic surgery with a Board-certified subspecialty in orthopedic 

sports medicine, noted that bilateral tarsal tunnel and plantar nerve lesion (Morton’s neuroma) 

have been successfully accepted as work-related conditions. He stated that the June 2, 2011 

report by Dr. Ghodadra, caused some confusion, in that he recommended an additional three 

percent bilateral lower extremity impairment for tarsal tunnel and one percent lower extremity 

for permanent impairment for Morton neuroma according to Table 16-2, page 501 of the 

A.M.A., Guides. However, Dr. Garelick determined that Dr. Ghodadra mixed up the right/left 

impairment ratings. Given that appellant had previously been awarded a schedule award for 13 

percent left lower extremity impairment, an additional 3 percent plus 1 percent, would allow a 

total of 16 percent left lower extremity permanent impairment according to the Combined Values 

Chart on page 604 of the A.M.A., Guides. Using the same rationale, Dr. Garelick concluded that 

20 percent impairment to the right lower extremity plus 3 percent plus 1 percent equaled a total 

23 percent impairment to the right lower extremity when using the Combined Values Chart. 

By decision dated May 30, 2013, OWCP issued appellant a schedule award for an 

additional 3 percent impairment to her right lower extremity and an additional 3 percent 

impairment to her left lower extremity, for a total schedule award of 23 percent for right lower 

extremity impairment and 16 percent for her left lower extremity impairment. 

On September 15, 2013 appellant requested reconsideration. 

In a September 11, 2013 evaluation, Dr. Michael Flood, a podiatrist, determined that 

pursuant to Table 16-22 and Table 16-25 of the A.M.A., Guides, appellant had a class 3 

impairment of the bilateral ankle with grade modifiers of 2 for functional history, physical 

examination and clinical studies, for a final grade rating of A, or an impairment to the lower 

extremity of 26 percent based on Table 16-22 and Table 16-25 of the A.M.A., Guides. With 

regard to her right foot, he found that, pursuant to Table 16-8 and Table 16-2 of the A.M.A.,
5

Guides, appellant had a class 3 with grade modifiers of 2, for a grade A final class grade rating of 

a right extremity impairment of 26 percent or 10 percent whole person impairment. For the left 

foot, using the same tables, Dr. Flood found class 3 with grade modifiers of 2 for a final class 

grade rating of A, for a lower left extremity impairment of 26 percent or 10 percent of the whole 

person. He calculated the total whole person impairment as 36 percent. Dr. Flood noted that 

previous ratings did not include arthritis as a condition and that it is a consequential condition to 

postsurgical procedure performed bilaterally on the feet within six months to one year after 

surgery. He also noted that appellant presented with worsening of the plantar fasciitis condition 

due to physical stresses on her feet. Dr. Flood concluded with a reasonable degree of medical 

certainty that the frostbite was causative in the development of the conditions described in the 

diagnosis along with the Norton’s neuroma and tibial nerve entrapment already accepted in this 

case. He noted that appellant relies on the use of a cane because of stiffness, pain, weakness of 

the feet and instability of her knee conditions. 

By memorandum dated October 23, 2013, OWCP asked an OWCP medical adviser to 

reconsider appellant’s impairment. In an October 27, 2013 report, Dr. Christopher Gross, an 

OWCP medical adviser Board-certified in psychiatry and neurology, recommended an 

“independent medical examination.” He believed that appellant’s impairment was significantly 

less than what had been awarded. 

On December 5, 2013 OWCP referred appellant to Dr. Allan Brecher, a Board-certified 

orthopedic surgeon, for a second opinion. It sent Dr. Brecher a statement of accepted facts dated 

November 19, 2013 stating, inter alia, that OWCP accepted appellant’s claim for bilateral plant 

fibromatosis, bilateral tarsal tunnel syndrome, and bilateral lesion of the plantar nerve. In a 

January 20, 2014 report, Dr. Brecher noted that appellant did not have clear tarsal tunnel 

syndrome, so he did not give her any impairment rating for that. He did note that appellant still 

had chondromalacia of the right knee based on imaging and examination. Dr. Brecher noted 

decreased strength but no atrophy, that he believed is due to fibromyalgia. He noted residual 

plantar fasciitis on examination and chondromalacia of both knees. Dr. Brecher noted that her 

knees would be eight percent on both sides, however, only the right side is accepted. He noted 

that appellant has two percent impairment for her ongoing plantar fasciitis. 

In a January 24, 2014 report, Dr. Brecher calculated appellant’s impairment. He noted 

that for the right knee, appellant had impairment based on the knee regional grid, page 511, 

Table 16-3, class 1. Grade modifiers were listed for functional history as 2, for physical 

examination was 1, and clinical studies were 2 which equaled grade D giving her eight percent 

impairment for her chondromalacia of the knee. As for her plantar fibromatosis, Dr. Brecher 

looked at the foot and ankle regional grid, page 501, Table 16-2. Grade modifiers for functional 

history was 2, physical examination was 2, and clinical studies were 1 giving her a grade of D 

and a score of two percent. Dr. Brecher added them together yielding a rating of 10 percent. As 

for the left leg, the plantar fasciitis was accepted, but the knee was not. Therefore, using the 

same criteria as the right side, Dr. Brecher determined that appellant would actually have a 10 

percent impairment of the leg, but as only the plantar fasciitis is accepted, he found the amount 

would be 2 percent. 

In a February 24, 2014 report, Dr. Gross, an OWCP medical adviser, concluded that 

based on Table 16-2, appellant has a class 1 diagnosis of bilateral plantar fasciitis, which has a 
6

base impairment of one percent. Based on functional history, he noted that appellant walked 

with a cane, and therefore had a grade 2 modifier. Dr. Gross noted that, based on her physical 

examination of moderate palpatory findings and normal range of motion, he has a grade 2 

modifier. He stated that clinical studies were not applicable. Dr. Gross concluded that appellant 

had a net adjustment formula of +2, and adjustment which corresponds to a permanent 

impairment of two percent bilaterally, which was in agreement with Dr. Brecher. He stated that 

appellant’s right knee osteoarthritis (left knee not accepted) is class 1 diagnosis with a three 

millimeter cartilage interval, pursuant to Table 16-3. Based on functional history, appellant uses 

a cane and thus had a grade 2 modifier. On physical examination, she had normal range of 

motion and minimal tenderness on palpitation and thus a grade 1 modifier. Clinical studies were 

used in the determination of the diagnosis. Using the net adjustment formula, the net adjustment 

is +1, which corresponds to a class D adjustment of eight percent right lower extremity. 

On March 10, 2014 OWCP noted that the medical adviser, Dr. Gross, did not discuss 

Dr. Flood’s report, and asked that he do so. In a March 17, 2014 report, Dr. Gross did not 

change his impairment findings. He pointed out that Dr. Flood “makes arbitrary ratings based on 

range of motion measurements” but that the diagnosis-based impairments are the preferred 

methods of calculating impairment. Dr. Gross noted that Dr. Flood could not comment on 

appellant’s right knee osteoarthritis as he is a podiatrist. 

By decision dated April 7, 2014, OWCP determined that the evidence was not sufficient 

to modify the prior decision. 

LEGAL PRECEDENT 

The schedule award provision of FECA4

 and its implementing regulations5 set forth the 

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

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

specify the manner in which the percentage of loss shall be determined. 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 evaluates the degree of permanent impairment according to the standards 

set forth in the specified edition of the A.M.A., Guides.

6

 The A.M.A., Guides has been adopted 

by the implementing regulations as the appropriate standard for evaluating schedule losses.7 For 

impairment ratings calculated on or after May 1, 2009, OWCP should advise any physician 

evaluating per impairment to use the sixth edition.8

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404. 

6 Id. at § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any 

physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5.a (February 2013). 

7 See id.; Jacqueline S. Harris, 54 ECAB 139 (2002). 

8

 Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.808.5.a (February 2013). 
7

The sixth edition requires identifying the impairment Class for Diagnosis (CDX), which 

is then adjusted by grade modifiers based on Functional History (GMFH), Physical Evidence 

(GMPE) and Clinical Studies (GMCS).9 The net adjustment formula is (GMFH-CDX) + 

(GMPE-CDX) + (GMCS-CDX).10 The sixth edition of the A.M.A., Guides also provides that 

range of motion may be selected as an alternative approach in rating impairment under certain 

circumstances. A rating that is calculated using range of motion may not be combined with a 

diagnosis-based impairment and stands alone as a rating.11 The sixth edition of the A.M.A., 

Guides provides that lower extremity impairments be classified by diagnosis which is then 

adjusted by using grade modifiers according to the formula noted above.12

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.13

OWCP’s procedures further provide as follows: 

“The [claims examiner] is responsible for ensuring that the [statement of accepted 

facts] is correct, complete, unequivocal, and specific. When the [medical 

adviser], second opinion specialist or referee physician renders a medical opinion 

based on an [statement of accepted facts] which is incomplete or inaccurate or 

does not use the [statement of accepted facts] as the framework in forming his or 

her opinion, the probative value of the opinion is seriously diminished or negated 

altogether.14

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWPC a disinterested arbiter. While the claimant has the burden to establish entitlement to 

compensation OWCP shares the responsibility in the development of the evidence to see that 

justice is done.15 When OWCP undertakes to develop the medical aspects of a case, it must 

exercise extreme care in seeing that its administrative processes are impartially and fairly 

conducted.16

 9

 A.M.A., Guides 494-531. 

10 Id. at 521. 

11 L.B., Docket No. 12-910 (issued October 5, 2012). 

12 FECA Bulletin No. 09-03 (issued March 15, 2009); see also M.K., Docket No. 10-478 (issued 

November 17, 2010). 

13 See Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.808.6(f) (February 2013). 

14 Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 

(October 1990). 

15 Richard Kendall, 43 ECAB 790 (1992); Isidore J. Gennino, 35 ECAB 442 (1983). 

16 See J.F., Docket No. 13-1814 (issued January 27, 2014); Peter C. Belkind, 56 ECAB 580 (2005). 
8

ANALYSIS 

The Board finds that this case is not in posture for decision. 

OWCP initially accepted appellant’s claim for frostbite in her foot and bilateral plantar 

fibromatosis. However, Dr. Khuri made additional diagnoses, including tibial tunnel syndrome. 

In his June 2, 2011 report, Dr. Ghodadra, an OWCP medical adviser, concluded that appellant’s 

bilateral tarsal tunnel syndrome and Morton’s neuroma are consequential to the accepted 

conditions of bilateral frostbite and plantar fascial fibromatosis. On July15, 2011 OWCP added 

to the list of accepted conditions bilateral tarsal tunnel syndrome and bilateral lesion of the 

plantar nerve. In a February 6, 2012 report, Dr. Garelick, the second OWCP medical adviser, 

determined that appellant had a 16 percent impairment of her left lower extremity and a 23 

percent impairment of her right lower extremity. Based on this opinion, on May 30, 2013 

OWCP issued a schedule award for 16 percent of the left lower extremity and 23 percent of the 

right lower extremity. Subsequently, Dr. Flood, appellant’s podiatrist, found that appellant had a 

26 percent permanent impairment of her right foot and a 26 percent impairment of her left foot. 

OWCP referred appellant’s case to another OWCP medical adviser, Dr. Gross, who believed that 

appellant’s impairment was significantly less than what she received, and recommended a 

referral for an “independent medical examination.” 

On December 5, 2013 OWCP referred appellant to Dr. Allan Brecher for a second 

opinion examination. In reaching his conclusion with regard to permanent impairment, 

Dr. Brecher indicated that appellant did not have clear tarsal tunnel syndrome. Based on his 

application of the A.M.A., Guides, he concluded that appellant had 10 percent permanent 

impairment of the right leg and 2 percent permanent impairment of the left, noting that only 

plantar fasciitis was accepted. However, the statement of accepted facts sent to Dr. Brecher, 

dated November 19, 2013, clearly indicated that appellant’s claim had been accepted for bilateral 

tarsal tunnel syndrome. 

To assure that the report of a medical specialist is based upon a proper factual 

background, OWCP provides a statement of accepted facts. When a second opinion physician 

does not use the statement of accepted facts as the framework in forming his opinion, the 

probative value of the opinion is diminished or negated altogether.17

Therefore, the Board finds that as Dr. Brecher’s opinion is outside the framework of the 

statement of accepted facts, it is based on an inaccurate factual history.18 Since he rendered his 

opinion based on incomplete factual information, Dr. Brecher’s report is of limited value.19 

Proceedings before OWCP are not adversarial in nature and OWCP is not a disinterested arbiter, 

in a case where OWCP proceeds to develop the evidence and to procure medical evidence, it 

must do so in a fair and impartial manner.20 As OWCP undertook development of the evidence 

 17 J.F., Docket No. 13-1814 (issued January 27, 2014). 

18 V.A., Docket No. 14-722 (issued May 8, 2014). 

19 T.M., Docket No. 12-1654 (issued April 4, 2013). 

20 Walter A. Fundringer, Jr., 37 ECAB 200, 204 (1985). 
9

by referring appellant to a second opinion physician, it has the duty to secure an appropriate 

report.21 Because Dr. Brecher did not base his report on an accurate factual history, the case will 

be remanded to OWCP for further development of the medical evidence, to be followed by a 

de novo decision. 

CONCLUSION 

The Board finds that this case is not in posture for decision regarding the extent and 

degree of impairment. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated April 7, 2014 is set aside and the case is remanded for further 

development consistent with this opinion. 

Issued: July 2, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 21 When OWCP refers a claimant for a second opinion evaluation and the report does not adequately address the 

relevant issues, OWCP should secure an appropriate report on relevant issues. Ayanle A. Hashi, 56 ECAB 

234 (2004). See also Mima Cruz, Docket No. 06-183 (issued April 5, 2006) (where the Board found that the second 

opinion physician’s medical report was of little probative value and could not constitute a basis for denying the 

claim because it was not based on the statement of accepted facts. The Board remanded the case to OWCP).