United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.O., Appellant 

and 

U.S. POSTAL SERVICE, MILLARD STATION, 

Omaha, NE, Employer 

__________________________________________ 

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Docket No. 16-0609 

Issued: June 24, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On February 11, 2016 appellant filed a timely appeal from a November 2, 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 has more than six percent permanent impairment of the 

left leg. 

FACTUAL HISTORY 

On October 24, 2011 appellant, then a 27-year-old transitional employee carrier, filed a 

traumatic injury claim (Form CA-1) alleging that on that date she injured her ankle in the 

performance of duty. OWCP accepted the claim for a left ankle tibiofibular ligament strain and 

anterior tear, a left ankle calcaneofibular tear, a left ankle talus fracture, and osteochondritis 

 1

 5 U.S.C. § 8101 et seq. 
2

dissecans lesion, ankyloses of the left ankle, and a left intrasheath subluxation of the peroneal 

tendon. 

On July 25, 2012 Dr. David J. Inda, a Board-certified orthopedic surgeon, performed a 

debridement of the osteochondritis dissecans lesion with microfracture, a ligament reconstruction 

of the left ankle, and an exploration of the peroneal tendons with tenosynovectomy. On 

March 20, 2013 he performed a repair of the superior peroneal retinaculum of the left ankle, a 

fibular groove deepening procedure, and tenolysis of the peroneal tendons. 

In a report dated January 14, 2014, Dr. Inda related that appellant underwent “repeated 

procedures for peroneal tendon pathology and injury.” Referencing Table 16-2 of the sixth 

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

Impairment (A.M.A., Guides),2

 he found that appellant had six percent impairment of the lower 

extremity or nine percent impairment of the foot and ankle. 

Appellant, on June 23, 2015, filed a claim for a schedule award (Form CA-7).3

 OWCP 

advised her by letter dated July 7, 2015 that she should submit an impairment evaluation from 

her physician addressing the extent of any permanent impairment in accordance with the 

A.M.A., Guides. 

In an impairment evaluation dated July 17, 2015, Dr. Inda advised that appellant reached 

maximum medical improvement on July 8, 2014. Appellant underwent surgery for a torn 

peroneal tendon but continued to experience pain and reduced motion. Dr. Inda referenced his 

prior report of January 2014. He opined that appellant had six percent impairment of the lower 

extremity using Table 16-2 on page 501 of the A.M.A., Guides “for injury involving the peroneal 

tendon with moderate motion deficits and based on her examination.” Dr. Inda noted that six 

percent left lower extremity impairment yielded nine percent impairment of the foot and ankle. 

An OWCP medical adviser reviewed Dr. Inda’s finding on August 6, 2015 and 

determined that it was insufficient to support a left lower extremity impairment rating as he did 

not apply grade modifiers or provide findings on examination. He recommended referral of 

appellant for a second opinion examination. 

On August 19, 2015 OWCP referred appellant to Dr. Adam T. Kafka, a Board-certified 

physiatrist, for a second opinion examination. 

In an impairment evaluation dated September 9, 2015, Dr. Kafka reviewed appellant’s 

history of injury and surgeries. He discussed her current complaints of pain and tightness with 

prolonged walking. On examination Dr. Kafka found no edema, loss of sensation, or muscle 

atrophy of the leg or foot. He found “mild tenderness just proximal to the lateral malleolus,” 

some loss of dorsiflexion and eversion, and pain with passive inversion. Dr. Kafka diagnosed a 

left ankle sprain with peroneal tendon dysfunction as a result of her October 24, 2011 work 

 2

 A.M.A., Guides (6th ed.) Table 16-2. 

3

 In a decision dated January 8, 2014, OWCP denied appellant’s request to expand her claim to include a back 

condition due to or as a consequence of her October 24, 2011 work injury. By decision dated March 24, 2015, it 

reduced her compensation to zero based on its finding that her actual earnings as an address management systems 

technician effective October 27, 2014, fairly and reasonably represented her wage-earning capacity. 
3

injury. He opined that appellant reached maximum medical improvement on 

November 26, 2013. Citing the A.M.A., Guides, Dr. Kafka identified the most significant 

diagnosis as a class 1 peroneal strain with mild loss of motion using Table 16-2 on page 501, 

which yielded a default value of five percent. He applied a grade modifier of one for functional 

history for a mild deficit, a grade modifier of two for physical examination based on moderate 

findings, and no grade modifier for clinical studies as its use was not “confirmatory.” Utilizing 

the net adjustment formula, Dr. Kafka adjusted the default value over one place to find six 

percent permanent impairment of the left lower extremity. 

An OWCP medical adviser reviewed Dr. Kafka’s report on September 23, 2014 and 

concurred with his impairment rating. He determined, however, that the date of maximum 

medical improvement was the date of Dr. Kafka’s examination. 

By decision dated November 2, 2015, OWCP granted appellant six percent impairment of 

the left leg. The period of the award ran for 17.28 weeks from September 10, 2015 to 

January 8, 2016.4

On appeal appellant argues that Dr. Kafka opined that she did not have muscle atrophy 

without measuring her lower extremity. She notes that Dr. Inda found that she had calf atrophy 

and that the atrophy was documented in physical therapy notes. 

LEGAL PRECEDENT 

The schedule award provision of FECA,5

 and its implementing federal regulations,6 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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

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

condition, which is then adjusted by grade modifiers based on Functional History (GMFH), 

Physical Examination (GMPE), and Clinical Studies (GMCS).9

 The net adjustment formula is 

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

 4

 OWCP moved the date of maximum medical improvement on September 10, 2015 because appellant received 

wage-loss compensation on September 9, 2015. 

5

 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404. 

7 Id. at § 10.404(a). 

8

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

Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010). 

9

 A.M.A., Guides 494-531. 
4

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to OWCP’s 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 

OWCP accepted the claim for a left ankle tibiofibular ligament strain and anterior tear, a 

left ankle calcaneofibular tear, a left ankle talus fracture and osteochondritis dissecans lesion, 

ankyloses of the left ankle, and a left intrasheath subluxation of the peroneal tendon. Appellant 

underwent two ankle surgeries on July 25, 2012 and March 20, 2013. 

Appellant filed a claim for a schedule award on June 23, 2015. In an impairment 

evaluation dated July 17, 2015, Dr. Inda advised that appellant reached maximum medical 

improvement on July 8, 2014. He discussed her history of a peroneal tendon tear treated with 

surgery. Dr. Inda referenced his January 2014 report finding that appellant had six percent 

impairment of the lower extremity under Table 16-2 of the A.M.A., Guides for a peroneal tendon 

injury with moderate loss of motion. He indicated that the six percent lower extremity 

impairment equaled a nine percent impairment of the foot. 

An OWCP medical adviser reviewed Dr. Inda’s report and noted that he did not include 

examination findings or apply grade modifiers to his impairment rating. He made no specific 

reference to, or finding of, lower extremity atrophy in his impairment rating report. Dr. Inda 

recommended a second opinion examination. 

Dr. Kafka, an OWCP referral physician, provided a September 9, 2015 impairment 

evaluation. On examination he found no swelling, muscle atrophy, or reduced sensation but mild 

tenderness near the lateral malleolus, some loss of motion in dorsiflexion and eversion, and pain 

with passive inversion. Dr. Kafka identified the diagnosis as a class 1 peroneal strain with mild 

motion loss according to Table 16-2 of the A.M.A., Guides, which yielded a default impairment 

value of five percent. He applied grade modifiers of two for physical examination based on 

moderate findings and one for functional history for a mild deficit. Dr. Kafka used the net 

adjustment formula and moved the default value over one place to find six percent left lower 

extremity permanent impairment.11 He opined that appellant reached maximum medical 

improvement on November 26, 2013. 

An OWCP medical adviser reviewed and agreed with Dr. Kafka’s September 9, 2015 

impairment rating. He found, however, that the date of maximum medical improvement should 

be the date of the impairment evaluation upon which OWCP based appellant’s schedule award.12

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

Chapter 2.808.6(f) (February 2013). 

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

yielded an adjustment of one. Dr. Kafka found clinical studies not useful. 

12 The determination of whether maximum medical improvement has been reached is based on the probative 

medical evidence of record, and is usually considered to be the date of the evaluation by the attending physician 

which is accepted as definitive by OWCP. See Mark A. Holloway, 55 ECAB 321 (2004). 
5

On appeal appellant contends that Dr. Kafka failed to obtain measurements to determine 

whether or not she had muscle atrophy. She alleges that Dr. Inga found muscle atrophy. 

Regardless, Dr. Inga also found that appellant had six percent left lower extremity impairment, 

which he converted to nine percent permanent impairment of the foot. Table 16-10 on page 530 

of the A.M.A., Guides provides that six percent lower extremity impairment equals nine percent 

impairment of the foot and ankle. The record therefore is found not to contain any impairment 

opinion which supports any greater impairment than the six percent previously awarded. 

Appellant is not entitled to receive two awards for injury to the same body part. The 

Board has held that, when impairment residuals of an injury to a member of the body specified in 

the schedule extend into an adjoining area of a member also enumerated in the schedule, such as 

an injury of a finger into the hand, or a hand into the arm, or of a foot into the leg, the schedule 

award should be made on the basis of the percentage loss of use of the larger member, not both 

members.13 However, where impairment of the foot would yield more compensation than the 

impairment to the larger member, the leg, appellant should be given the benefit of the more 

favorable allowance.14 

Section 8107(a) of FECA provides 288 weeks of compensation for total loss of a leg and 

205 weeks of compensation for total loss of a foot.15 For the leg, 288 times six percent equals 

17.28 weeks of compensation. For the foot, 205 weeks times nine percent equals 18.45 weeks of 

compensation. The award to the foot is more favorable and thus the Board will modify OWCP’s 

schedule award decision to find that appellant is entitled to 18.45 weeks of compensation for 

nine percent impairment of the left foot.16

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 nine percent permanent impairment of the left foot, 

entitling her to a total of 18.45 weeks of compensation. 

 13 See L.M., Docket No. 09-0690 (issued December 29, 2009); Sam Jones, 25 ECAB 163 (1974). 

14 See L.M., id. 

15 5 U.S.C. § 8107(a). 

16 See R.D., Docket No. 07-0868 (issued July 25, 2007); Sharon L. Orcutt, Docket No. 04-0424 (issued 

July 26, 2004). OWCP’s procedures provide that if the loss of two or more digits exceeds the loss for the hand or 

foot, the award should be the most favorable to the claimant. Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Schedule Awards and Permanent Disability Claims, Chapter 2.808.7(a)(2) (February 2013). 
6

ORDER 

IT IS HEREBY ORDERED THAT the November 2, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed, as modified. 

Issued: June 24, 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