United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bellmawr, NJ, Employer 

__________________________________________ 

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Docket No. 15-1212 

Issued: October 27, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

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 May 6, 2015 appellant, through counsel, filed a timely appeal from a March 11, 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 over the merits of this case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish that he has more than 

four percent permanent impairment of his right leg and four percent permanent impairment of his 

left leg, for which he received schedule awards. 

FACTUAL HISTORY 

In 1976, OWCP accepted that appellant, then a 31-year-old part-time flexible letter 

carrier, sustained bilateral aggravation of pes valgo planus due to the extensive walking and 

standing required by his job. On May 5, 2009 he underwent right foot surgery, including triple 

 1

 5 U.S.C. §§ 8101-8193. 
2

arthrodesis and percutaneous Achilles tendon lengthening. This surgery was not accepted as 

being related to an accepted condition. 

Appellant filed a claim for a schedule award (Form CA-7) due to his accepted work 

injury. OWCP determined that there was a conflict in the medical opinion between Dr. Nicolas 

Diamond, an attending osteopath, and an OWCP medical adviser regarding the extent of the 

permanent impairment to his legs. To resolve the conflict, OWCP referred appellant in 

February 2010 to Dr. George P. Glenn, Jr., a Board-certified orthopedic surgeon, for an impartial 

medical examination and opinion on the extent of appellant’s leg impairment under the standards 

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

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

In an April 6, 2010 report, Dr. Glenn determined that appellant had one percent 

permanent impairment of his right leg and zero percent permanent impairment of his left leg 

under the standards of the sixth edition of the A.M.A., Guides. 

In a January 24, 2012 decision, OWCP granted appellant a schedule award for one 

percent permanent impairment of his right leg and determined that he had zero percent 

permanent impairment of his left leg. The award ran for 2.88 weeks from April 6 to 26, 2010. 

The award was based on a determination that the opinion of Dr. Glenn represented the weight of 

the medical evidence with respect to appellant’s leg impairment. 

In a June 26, 2012 decision, an OWCP hearing representative affirmed OWCP’s 

January 24, 2012 schedule award decision. She found that the special weight of the medical 

evidence regarding appellant’s lower extremity impairment continued to rest with the opinion of 

Dr. Glenn. 

In an October 28, 2013 decision,2

 the Board set aside OWCP’s June 26, 2012 decision. 

The Board found that OWCP had not properly selected Dr. Glenn under the Physicians Directory 

System (PDS). The Board remanded the case to OWCP for selection of another impartial 

medical specialist and, after carrying out this development, the issuance of an appropriate 

decision regarding appellant’s schedule award claim. 

On remand, OWCP referred appellant, the case record, and a statement of accepted facts 

to Dr. Ian B. Fries, a Board-certified orthopedic surgeon, for an impartial medical examination 

and impairment evaluation regarding the permanent impairment of appellant’s legs. 

In a June 19, 2014 report, Dr. Fries discussed appellant’s factual and medical history, 

including his history of treatment and diagnostic testing and the accepted work-related 

conditions. He reported his physical examination findings noting that appellant had bilateral pes 

valgo planus with limited dorsiflexion. Appellant also had bilateral fasciitis and myositis of the 

feet. Dr. Fries provided a calculation indicating that appellant had four percent permanent 

impairment of his right leg and four percent permanent impairment of his left leg. He noted that, 

under Table 16-2 of the sixth edition of the A.M.A., Guides, there was no diagnosis-based 

category for pes planus and/or heel valgus, but that the closest diagnosis-based category was the 

bilateral deformity of the midfoot called “rocker bottom” as described in Table 16-2 on page 

 2

 Docket No. 13-368 (issued October 28, 2013). 
3

505. Under this diagnosis, appellant fell under class 1 (mild) for a default value of five percent 

in each leg. Dr. Fries determined that, for both legs, appellant fell under grade modifier 1 for 

functional history, grade modifier 1 for physical examination, and grade modifier 0 for clinical 

studies.3

 Application of the Net Adjustment Formula meant that appellant’s impairment in each 

leg moved one space to the left on Table 16-2 such that the impairment rating moved from five 

to four percent in each leg.4

In a report dated July 18, 2014, Dr. Harvey L. Seigel, a Board-certified orthopedic 

surgeon serving as an OWCP medical adviser, noted that he had evaluated the evidence of record 

including the impairment evaluation of Dr. Fries. He concluded that appellant had four percent 

permanent impairment of his right leg and four percent permanent impairment of his left leg.5

By decision dated August 5, 2014, OWCP granted appellant a schedule award for three 

percent permanent impairment of his right leg and four percent permanent impairment of his left 

leg. The award ran for 20.16 weeks from April 27 to September 15, 2010. As appellant had 

already received a schedule award for one percent permanent impairment of his right leg, he now 

had received schedule awards for a total right leg permanent impairment of four percent and a 

total left leg permanent impairment of four percent.6

Appellant, through counsel, requested a video hearing with an OWCP hearing 

representative. During the hearing, counsel argued that appellant’s May 5, 2009 right foot 

surgery should have been included in the impairment calculations. 

In a March 11, 2015 decision, the hearing representative affirmed OWCP’s August 5, 

2014 decision noting that appellant had not shown that he has more than four percent permanent 

impairment of his right leg and four percent permanent impairment of his left leg, for which he 

received schedule awards.7

LEGAL PRECEDENT 

The schedule award provision of FECA8 and its implementing regulations9 set forth the 

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

 3

 Dr. Fries indicated that there were no relevant clinical studies for this condition. 

4

 Dr. Fries also provided a calculation rating for appellant’s right leg of 12 percent which included his May 5, 

2009 right foot surgery. 

5

 Dr. Seigel agreed that it was correct to not include appellant’s May 5, 2009 right foot surgery in the impairment 

rating calculation. 

6

 OWCP stated, “You have an outstanding overpayment balance in the amount of $9,395.67. Therefore, this 

amount was deducted from your schedule award.” 

7

 The hearing representative further indicated that the question of whether appellant’s schedule award monies 

should be deducted from an overpayment of compensation still had to be determined by OWCP. As this matter is in 

an interlocutory posture, it is not before the Board. See 20 C.F.R. § 501.2(c)(2) (providing that there will be no 

appeal with respect to any interlocutory matter decided (or not decided) during the pendency of a case). 

8

 5 U.S.C. § 8107. 

9

 20 C.F.R. § 10.404 (1999). 
4

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. The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.10 The A.M.A., Guides has been adopted by 

the implementing regulations as the appropriate standard for evaluating schedule losses.11

In determining impairment for the lower extremities under the sixth edition of the 

A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower 

extremity to be rated. With respect to the foot, the relevant portion of the leg for the present case, 

reference is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501.12 After 

the Class of Diagnosis (CDX) is determined from the Knee Regional Grid (including 

identification of a default grade value), the Net Adjustment Formula is applied using the grade 

modifier for Functional History (GMFH), grade modifier for Physical Examination (GMPE), and 

grade modifier for Clinical Studies (GMCS). The Net Adjustment Formula is (GMFH - CDX) + 

(GMPE - CDX) + (GMCS - CDX).13 

It is well established that, in determining the amount of a schedule award for a member of 

the body that sustained an employment-related permanent impairment, preexisting impairments of 

the body are to be included.14 There is no basis for including subsequently acquired conditions.15

Section 8123(a) of FECA provides in pertinent part: “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.”16 When there are 

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

medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical 

evidence.17 In situations where there exist opposing medical reports of virtually equal weight and 

rationale and the case is referred to an impartial medical specialist for the purpose of resolving the 

 10 Id. 

11 W.B., Docket No. 14-1982 (issued August 26, 2015). For OWCP decisions issued after May 1, 2009, the sixth 

edition of the A.M.A., Guides is used. B.M., Docket No. 09-2231 (issued May 14, 2010). See also Federal (FECA) 

Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Ex. 1 (January 2010); Federal (FECA) 

Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a 

(February 2013). 

12 See A.M.A., Guides (6th ed. 2009) 501-08. 

13 Id. at 515-22. 

14 D.F., 59 ECAB 288 (2007); Kenneth E. Leone, 46 ECAB 133 (1994). 

15 R.G., Docket No. 13-220 (issued May 9, 2013). 

16 5 U.S.C. § 8123(a). 

17 William C. Bush, 40 ECAB 1064, 1975 (1989). 
5

conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper 

factual background, must be given special weight.18 

ANALYSIS 

In 1976, OWCP accepted that appellant sustained bilateral aggravation of pes valgo 

planus due to the extensive walking and standing required by his job. Appellant received 

schedule awards for a total right leg permanent impairment of four percent and a total left leg 

permanent impairment of four percent under the standards of the sixth edition of the A.M.A., 

Guides. 

The Board finds that appellant has not shown that he has more than four percent 

permanent impairment of his right leg and four percent permanent impairment of his left leg. 

After development of the evidence, OWCP properly referred appellant to Dr. Fries, a 

Board-certified orthopedic surgeon, for an impartial medical examination and evaluation to 

resolve the conflict in the medical opinion evidence regarding his leg impairment.19 

In a June 19, 2014 report, Dr. Fries discussed the factual and medical history of 

appellant’s claim and reported his physical examination findings. He provided a calculation 

concluding that appellant had four percent permanent impairment of his right leg and four 

percent permanent impairment of his left leg. The Board finds that this calculation provides a 

proper assessment of appellant’s leg impairment. Dr. Fries noted that, under Table 16-2 of the 

sixth edition of the A.M.A., Guides, the closest diagnosis-based category was the bilateral 

deformity of the midfoot called “rocker bottom” as described in Table 16-2 on page 505. Under 

this diagnosis, appellant fell under class 1 (mild) for a default value of five percent in each leg. 

Dr. Fries determined that, for each leg, appellant fell under grade modifier 1 for functional 

history, grade modifier 1 for physical examination, and grade modifier 0 for clinical studies. 

Application of the Net Adjustment Formula meant that appellant’s impairment in each leg 

moved one space to the left on Table 16-2 such that the impairment rating moved from five to 

four percent in each leg. 

On July 18, 2014 Dr. Seigel, a Board-certified orthopedic surgeon serving as an OWCP 

medical adviser, noted that he agreed with the assessment that appellant had four percent 

permanent impairment of his right leg and four percent permanent impairment of his left leg. 

Dr. Fries also presented a calculation rating for appellant’s right leg of 12 percent which 

included his May 5, 2009 right foot surgery, triple arthrodesis, and percutaneous Achilles tendon 

lengthening. On appeal, counsel argued that Dr. Fries should have been asked whether 

appellant’s right triple arthrodesis surgery was work related.20 The Board notes that there was no 

 18 Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980). 

19 In an October 28, 2013 decision (Docket No. 13-368), the Board found that there was a conflict in the medical 

opinion evidence regarding this matter between Dr. Diamond, an attending osteopath, and an OWCP medical 

adviser. As noted previously, the Board found that a prior impartial medical specialist, Dr. Glenn, a Board-certified 

orthopedic surgeon, had not been properly selected under the PDS. The case was remanded to OWCP for referral of 

appellant to a new impartial medical specialist. OWCP correctly used the PDS in selecting Dr. Fries. 

20 Counsel argued that it was improper for Dr. Fries to rely on the statement of accepted facts with respect to this 

matter. 
6

conflict in the medical opinion evidence on this matter. The Board finds that it was proper for 

Dr. Seigel to exclude the May 5, 2009 surgery from the impairment calculation as there is no 

evidence that the condition necessitating this surgery was work related or that it preexisted the 

work injuries accepted in the 1970s.21

Appellant has not submitted any medical evidence showing that he has more than four 

percent permanent impairment of his right leg and four percent permanent impairment of his left 

leg, for which he received schedule awards.22

Appellant may request a schedule award or increased schedule award based on evidence 

of a new exposure or medical evidence showing progression of an employment-related condition 

resulting in permanent impairment or increased impairment. 

CONCLUSION 

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

more than four percent permanent impairment of his right leg and four percent permanent 

impairment of his left leg, for which he received schedule awards. 

 21 See supra notes 14 and 15. 

22 The Board notes that there is no evidence of record which would overcome the weight of the medical evidence 

regarding appellant’s leg impairment as represented by the opinion of Dr. Fries as interpreted by Dr. Seigel. See 

supra note 18. 
7

ORDER 

IT IS HEREBY ORDERED THAT the March 11, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 27, 2015 

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