United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.T., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Albany, NY, Employer 

__________________________________________ 

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Docket No. 16-0995 

Issued: September 12, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 11, 2016 appellant filed a timely appeal from a February 1, 2016 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 her burden of proof to establish more than 14 percent 

permanent impairment of her right lower extremity, for which she received schedule awards. 

FACTUAL HISTORY 

This case has previously been before the Board. OWCP accepted that on June 13, 1996 

appellant, then a 43-year-old distribution clerk, sustained a sprain and posterior malleolus 

fracture of her right ankle due to a fall at work. Between June 2005 and March 2007, 

 

 1 5 U.S.C. § 8101 et seq. 
2

Dr. Patrick R. Scerpella, an attending Board-certified orthopedic surgeon, performed several 

surgical procedures on appellant’s right foot that were authorized by OWCP. On February 12, 

2008 Dr. Scerpella determined that appellant had reached maximum medical improvement, 

provided findings on examination, and made an impairment calculation under the standards of 

the New York State Workers’ Compensation Board. 

On March 7, 2008 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving 

an OWCP medical adviser, applied the standards of the fifth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides) 

to Dr. Scerpella’s findings and determined that appellant had 12 percent permanent impairment 

of her right lower extremity. In a May 29, 2008 decision, OWCP granted appellant a schedule 

award for 12 percent permanent impairment of her right lower extremity and, in a January 23, 

2009 decision, an OWCP hearing representative affirmed the May 29, 2008 decision. Appellant 

filed an appeal with the Board. 

By decision dated November 2, 2009,2 the Board affirmed OWCP’s May 29, 2008 and 

January 23, 2009 decisions as modified to reflect that appellant had 14 percent permanent 

impairment of her right lower extremity. The Board found that Dr. Berman properly determined 

that appellant had seven percent permanent impairment of her right lower extremity due to 10 

degrees of right ankle dorsiflexion (or extension), and five percent permanent impairment of her 

right lower extremity due to 0 degrees of right hind foot inversion. The Board determined, 

however, that appellant also had two percent permanent impairment of her right lower extremity 

due to zero degrees of right ankle eversion and noted that combining all of appellant’s 

impairment ratings (using the Combined Values Chart of the A.M.A., Guides) meant that 

appellant had a total right lower extremity impairment of 14 percent. Because appellant had 

already been compensated for 12 percent permanent impairment of her right lower extremity, the 

Board determined that she was entitled to schedule award compensation for an additional 2 

percent permanent impairment of her right lower extremity. The facts and circumstances 

surrounding the prior appeal are incorporated herein by reference. 

By decision dated January 14, 2010, OWCP granted appellant a schedule award for an 

additional two percent permanent impairment of her right lower extremity. The award ran for 

5.76 weeks from October 11 to November 20, 2008. Through this supplemental award, the 

permanent impairment of appellant’s right lower extremity, for which she had been 

compensated, totaled 14 percent. 

On August 11, 2015 appellant filed a claim for compensation (Form CA-7) alleging 

additional permanent impairment. 

In a November 19, 2015 letter, OWCP requested that appellant submit additional 

evidence in support of her schedule award claim, including an impairment rating derived in 

accordance with the standards of the sixth edition of the A.M.A., Guides. 

Appellant submitted a November 24, 2015 form report for the State of New York 

Compensation Board in which Dr. Mark S. Post, an attending podiatrist, indicated that her right 

 2

 Docket No. 09-0814 (issued November 2, 2009). 
3

ankle exhibited 5 degrees of dorsiflexion, 25 degrees of plantar flexion, 10 degrees of inversion, 

and 10 degrees of eversion. Dr. Post noted, “[T]here is additional impairment of function due to 

weakness, atrophy, pain, or anesthesia estimated at right 5 percent.... I recommend an 

impairment rating of 45 percent of the right lower extremity.”3

Appellant also submitted other medical reports, including operative reports dated 

June 22, 2005, July 12, 2006, and March 26, 2007, and an office visit note dated 

September 28, 2006. 

In a February 1, 2016 decision, OWCP determined that appellant had not met her burden 

of proof to establish more than 14 percent permanent impairment of her right lower extremity, 

for which she received schedule awards. It found that the documents appellant submitted did not 

contain an impairment rating derived in accordance with the standards of the sixth edition of the 

A.M.A., Guides. 

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

appropriate standard for evaluating schedule losses.6 The effective date of the sixth edition of 

the A.M.A., Guides is May 1, 2009.7

ANALYSIS 

OWCP accepted that on June 13, 1996 appellant sustained a sprain and posterior 

malleolus fracture of her right ankle due to a fall at work. By decision dated May 29, 2008, it 

granted appellant a schedule award for 12 percent permanent impairment of her right lower 

extremity. In a November 2, 2009 decision, the Board determined that appellant was entitled to 

compensation for an additional two percent permanent impairment of her right lower extremity. 

 3

 Appellant also submitted a narrative report of Dr. Post’s physical examination on November 24, 2015, including 

the findings of range of motion testing for the right ankle. 

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404 (1999). 

6 Id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.6 (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 

(January 2010). 

7

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

Chapter 2.808.5a (February 2013); see also id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010). 
4

By decision dated January 14, 2010, OWCP granted appellant a schedule award for an additional 

2 percent permanent impairment of her right lower extremity such that the permanent 

impairment of her right lower extremity for which she had been compensated totaled 14 percent. 

Appellant filed a claim for an additional schedule award but OWCP found that the medical 

evidence was insufficient to establish a greater impairment. 

The Board finds that appellant failed to meet her burden of proof to establish more than 

14 percent permanent impairment of her right lower extremity, for which she received schedule 

awards. 

In support of her claim, appellant submitted a November 24, 2015 form report in which 

Dr. Post indicated that her right ankle exhibited 5 degrees of dorsiflexion, 25 degrees of plantar 

flexion, 10 degrees of inversion, and 10 degrees of eversion. Dr. Post noted, “[T]here is 

additional impairment of function due to weakness, atrophy, pain, or anesthesia estimated at right 

5 percent.... I recommend an impairment rating of 45 percent of the right lower extremity.” 

The Board finds that this report is of limited probative value because Dr. Post failed to 

provide any explanation of how his impairment rating was derived in accordance with the 

relevant standards, i.e., those of the sixth edition of the A.M.A., Guides as requested.8

 Dr. Post 

provided range of motion figures for appellant’s right ankle, but did not explain how they might 

have contributed to an impairment rating under the specific standards of the sixth edition of the 

A.M.A., Guides.9 The Board has held that an opinion on permanent impairment is of limited 

probative value if it is not derived in accordance with the standards adopted by OWCP and 

approved by the Board as appropriate for evaluating schedule losses.10

Appellant also submitted other medical reports in support of her claim, including several 

operative reports and an office visit note, but these documents do not contain any opinion on the 

extent of her right lower extremity impairment. 

For these reasons, the Board finds that appellant failed to meet her burden of proof to 

establish more than 14 percent permanent impairment of her right lower extremity. 

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. 

 8 See supra notes 6 and 7. 

9

 The source of the impairment form completed by Dr. Post is unclear, but its contents does not appear to be 

related to the standards of the sixth edition of the A.M.A., Guides.

 10 See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the 

standards adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little 

probative value in determining the extent of a claimant’s permanent impairment). 
5

CONCLUSION 

The Board finds that appellant failed to meet her burden of proof to establish more than 

14 percent permanent impairment of her right lower extremity, for which she had received 

schedule awards. 

ORDER 

IT IS HEREBY ORDERED THAT the February 1, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 12, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board