United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

RECORDS CONTROL DIVISION, 

St. Louis, MO, Employer

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Docket No. 17-1672

Issued: December 28, 2017

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 1, 2017 appellant filed a timely appeal from a March 7, 2017 merit decision of 

the Office of Workers’ Compensation Programs (OWCP).1 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.3

 

1

In a decision dated March 16, 2017, OWCP reduced appellant’s compensation to zero as his actual earnings as a 

file clerk effective October 18, 2015 fairly and reasonably represented his wage-earning capacity. Appellant has not 

appealed this decision and thus it is not before the Board at this time. See 20 C.F.R. §§ 501.2(c) and 501.3.

2

5 U.S.C. § 8101 et seq.

3 The Board notes that appellant submitted additional evidence on appeal. The Board’s jurisdiction is limited to 

reviewing the evidence that was before OWCP at the time of its final decision. Therefore, this additional evidence 

cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1). 
2

ISSUE

The issue is whether appellant has more than 12 percent permanent impairment of the 

right lower extremity, for which he previously received a schedule award.

FACTUAL HISTORY

On March 11, 2015 appellant, then a 42-year-old laborer, filed a traumatic injury claim 

(Form CA-1) alleging that on February 23, 2015 he fractured his right ankle in the performance 

of duty. OWCP accepted the claim for a closed right ankle fracture and right ankle dislocation. 

Appellant stopped work on February 23, 2015 and received wage-loss compensation from 

OWCP beginning April 10, 2015. On April 7, 2015 Dr. David K. Karges, an osteopath, 

performed an open reduction and internal fixation of the right lateral malleolus. 

Appellant returned to part-time limited-duty employment on July 21, 2015 and to fulltime modified employment on September 28, 2015. On October 14, 2015 he accepted a position 

as a scanner/indexer. 

On March 11, 2016 appellant filed a claim for a schedule award (Form CA-7). On 

March 25, 2016 OWCP advised him of the type of medical evidence needed to establish a claim 

for a schedule award. 

In a permanent impairment worksheet dated August 1, 2016, Dr. Karges identified the 

diagnosis as a class two right ankle trimalleolar fracture. He applied a grade modifier of two for 

functional history, physical examination, and clinical studies, which he found yielded two 

percent lower extremity impairment. Dr. Karges further found no ratable impairment due to a 

peripheral nerve injury and two percent impairment due to loss of ankle motion, for a total 

combined lower right lower extremity permanent impairment of four percent.

An OWCP medical adviser reviewed the evidence on August 13, 2016 and noted that

Dr. Karges’ impairment worksheet was not accompanied by a medical report or an explanation 

of the impairment rating. He noted that the physician found two percent impairment due to the 

diagnosis-based rating for a class two ankle fracture, which he found was not possible given that 

the impairment range for a class two ankle fracture was 19 to 25 percent under Table 16-2 on 

page 503 of the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides).4 The medical adviser also indicated that appellant had 

no peripheral nerve injury according to November 23, 2015 clinic notes, and that a 

September 28, 2015 clinic note showed only a minimal loss of dorsiflexion for ankle motion.5 

He recommended a second opinion examination.

By letter dated October 18, 2016, OWCP referred appellant to Dr. Richard T. Katz, a 

Board-certified physiatrist, for a second opinion examination. In a report dated December 1, 

2016, Dr. Katz diagnosed a right trimalleolar fracture and dislocation. He noted that x-rays 

 

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

5

In a progress report dated September 28, 2015, Dr. Karges found that appellant had good ankle motion with full 

plantarflexion and dorsiflexion to five degrees. 
3

obtained on November 23, 2015 revealed no hardware loosening and satisfactory healing of the 

fracture. Dr. Katz discussed appellant’s complaints of continued pain that varied with activity

and noted that pain sporadically interrupted his sleep. On examination, he found mild swelling 

of the right ankle and measured range of motion as 0 degrees dorsiflexion, 40 degrees plantar 

flexion, 20 degrees inversion, and 20 degrees eversion. Dr. Katz further found a negative 

anterior drawer and varus stress test, normal alignment of the heel, a negative tarsal tunnel and 

no pain over the posterior tibial tendon or on palpation of the metatarsal heads and interdigital 

nerves. He opined that appellant reached maximum medical improvement on 

November 23, 2015. Using the A.M.A., Guides, Dr. Katz identified the diagnosis as a class one 

trimalleolar fracture with mild deficits in motion, which yielded a default value of 10 percent.

He applied a grade modifier of two for functional history based on appellant’s answers to a pain 

questionnaire and a grade one modifier based on the physical examination, to find 12 percent 

permanent impairment of the right lower extremity.

An OWCP medical adviser reviewed the evidence on January 17, 2017 and concurred 

with Dr. Katz’ impairment rating. He found that 40 degrees plantar flexion, zero degrees 

dorsiflexion, and 20 degrees eversion yielded no impairment, and 20 degrees inversion yielded 

two percent impairment according to Table 16-20 and Table 16-22 on page 549 of the A.M.A., 

Guides, for a mild impairment due to loss of range of motion.6 The medical adviser concurred 

with Dr. Katz’ finding that the ratable diagnosis was a class one right ankle trimalleolar fracture 

with good alignment and mild range of motion deficits as set forth in Table 16-2 on page 503 of 

the A.M.A., Guides, which yielded a default value of 10 percent. He applied a grade modifier of 

two for functional history due to appellant’s continued symptoms and a grade modifier of one for 

physical examination findings of mild swelling and mild motion loss. The medical adviser noted 

that clinical studies were used to determine the diagnosis and thus were not used again as a grade 

modifier.

7

 Using the net adjustment formula, he found that the default value should be moved 

one place to the right for 12 percent right lower extremity impairment. 

By decision dated March 7, 2017, OWCP granted appellant a schedule award for 12 

percent permanent impairment of the right lower extremity. The period of the award ran for 

34.56 weeks from December 2, 2016 to July 31, 2017.

On appeal appellant argues that his schedule award was insufficient given the extent of 

his injury. He asserts that OWCP’s medical adviser was biased against him in rating his injury 

as mild. Appellant describes the effect of the work injury on his life and activities of daily 

living. He challenges that physician’s finding that he did not have pain lying down or sleeping. 

Appellant notes that his physician told him he will have arthritis due to his ankle injury. 

LEGAL PRECEDENT

The schedule award provision of FECA,8and its implementing federal regulation,9set 

forth the number of weeks of compensation payable to employees sustaining permanent 

 

6 A.M.A., Guides 550, Table 16-25.

7

Id. at 519.

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.
4

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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.10 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.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 ankle, the relevant portion of the leg (foot) 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 Foot and Ankle 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 

ANALYSIS

OWCP accepted that on February 23, 2015 appellant sustained a closed right ankle 

fracture and dislocation. On April 7, 2015 he underwent an open reduction and internal fixation 

of the right lateral malleolus. 

Dr. Karges provided a worksheet rating appellant’s permanent impairment. He found 

that appellant had two percent impairment due to his right ankle trimalleolar fracture and two 

percent impairment due to loss of ankle motion, for a total right lower extremity impairment of 

four percent. Dr. Karges, however, did not provide examination findings or otherwise explain 

his impairment rating, and as such it is of little probative value.14 Further, he combined a 

diagnosis-based impairment rating method with the range of motion method. Range of motion, 

however, is primarily used as a physical examination adjustment factor for lower extremity 

impairment ratings.

15

 If range of motion is the most appropriate mechanism for grading the 

impairment, it is a stand-alone rating used when other grids provide for a rating based on range 

of motion or no other diagnosis-based sections for rating the lower extremity impairment are 

applicable for impairment rating of a condition.16 

 

10 Id. at § 10.404(a).

11 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.5(a) (February 2013). 

12 See A.M.A., Guides 501-07.

13 Id. at 515-22.

14 See Patricia J. Penney-Guzman, 55 ECAB 757 (2004); Robert B. Rozelle, 44 ECAB 615 (1993).

15 A.M.A., Guides 497, section 16.2.

16 Id. at 543; see also D.F., Docket No. 15-0664 (issued January 8, 2016).
5

Upon the recommendation of OWCP’s medical adviser, OWCP referred appellant to

Dr. Katz for a second opinion examination regarding the extent of any permanent impairment.

Dr. Katz diagnosed a right trimalleolar fracture and dislocation and noted that appellant 

continued to experience pain with activity and pain that periodically interrupted sleep. He 

measured range of motion as zero degrees dorsiflexion, 40 degrees plantar flexion, and 20 

degrees inversion and eversion. On examination, Dr. Katz found a negative anterior drawer and 

varus stress test, mild right ankle swelling, normal heel alignment, and a negative tarsal tunnel 

test. Applying Table 16-2 on page 503 of the A.M.A., Guides, he identified the diagnosis as a 

class one trimalleolar fracture with a mild motion deficit, for a 10 percent default impairment 

rating. Dr. Katz applied a grade modifier of two for functional history based on appellant’s pain 

questionnaire and a grade modifier of one for physical examination findings. Utilizing the net 

adjustment formula discussed above, (GMFH - CDX) + (GMPE - CDX), or (2-1) + (1-1) = 1, 

yielded an adjustment one place to the right and 12 percent permanent impairment of the right 

lower extremity.

An OWCP medical adviser reviewed Dr. Katz’ opinion and concurred with his findings, 

noting that a grade modifier for clinical studies was not appropriate as it was used to identify the 

diagnosis. He further found that 40 degrees plantar flexion, zero degrees dorsiflexion, and 20 

degrees eversion yielded no impairment, and 20 degrees inversion yielded two percent 

impairment using Table 16-20 and Table 16-22 on page 549 of the A.M.A., Guides. As noted, 

range of motion is primarily used in determining grade modifiers and, if a stand-alone rating, is 

not combined with the diagnosis-based impairment method.17 The medical adviser determined 

that appellant had 12 percent right lower extremity impairment. The Board finds that the 

opinions of Dr. Katz and OWCP’s medical adviser constitute the weight of the evidence as they 

properly applied the protocols and tables of the A.M.A., Guides.

18

 The evidence establishes that 

appellant has no more than 12 percent permanent impairment of the right lower extremity. 

On appeal appellant argues that OWCP’s medical adviser was biased and a physician 

found that he did not experience pain sleeping. He did not, however, support his allegation of 

bias with any evidence or specific argument. The Board has held that allegations of bias by 

OWCP physicians must be supported by the record on appeal, and the current record does not 

support appellant’s claims of bias.19 Further, Dr. Katz discussed appellant’s complaints of pain 

that intermittently disturbed his sleep.

Appellant also contends that his schedule award was insufficient given the effect of his 

injury on his life and activities of daily living. The amount payable pursuant to a schedule award 

does not take into account the effect that the impairment has on employment opportunities, 

wage-earning capacity, sports, hobbies or other lifestyle activities.20 The number of weeks of 

compensation for a schedule award is determined by the compensation schedule at 5 U.S.C. 

§ 8107(c). For complete loss of use of the leg, the maximum number of weeks of compensation 

 

17 See supra note 14.

18 See J.S., Docket No. 15-0663 (issued June 5, 2015).

19 See G.G., Docket No .12-1168 (issued February 25, 2013). 

 

20 Ruben Franco, 54 ECAB 496 (2003).
6

is 288 weeks.21 Since appellant’s permanent impairment of the right leg is 12 percent, he is 

entitled to 12 percent of 288 weeks, or 34.56 weeks of compensation. There is no current 

medical report of record supporting any greater degree of impairment under the A.M.A., Guides.

Appellant relates that his physicians told him he will have arthritis in the future. He may 

request a schedule award or increased schedule award at any time 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 no more than 12 percent permanent impairment of the 

right lower extremity, for which he previously received a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the March 7, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 28, 2017

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

 

21 5 U.S.C. § 8107(c).