United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.G., APPELLANT 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Los Angeles, CA, Employer 

__________________________________________ 

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Docket No. 16-1741 

Issued: April 14, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 31, 2016 appellant, through counsel, filed a timely appeal from a July 5, 2016 

merit decision of the Office of Workers’ Compensation Programs (OWCP). 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. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant met her burden of proof to establish more than 10 percent 

permanent impairment of her right lower extremity, for which she previously received a schedule 

award. 

FACTUAL HISTORY 

On June 2, 2007 appellant, then a 51-year-old letter carrier, filed a timely occupational 

disease claim (Form CA-2) alleging that she developed a right calcaneal stress fracture due to 

repetitive walking at work. She indicated that she first became aware of the claimed condition 

on June 30, 2006 and first realized on May 11, 2007 that it was caused or aggravated by her 

federal employment. OWCP accepted appellant’s claim for right calcaneal fracture, closed. 

Appellant worked limited duty as a modified carrier. 

In a report dated February 27, 1997, Dr. John Spellman, an attending Board-certified 

orthopedic surgeon, noted that April 1995 x-rays did not show a heel spur, but that a bone scan 

of July 5, 1995 showed increased uptake in the region of the medial tubercle of the calcaneus. 

He noted that a repeat bone scan of April 30, 1996 showed uptake in the calcaneus consistent 

with plantar fasciitis. 

In a report dated December 14, 1997, Dr. Leonard A. Simpson, a Board-certified 

orthopedic surgeon serving as an OWCP medical adviser, opined that x-rays of appellant’s right 

heel taken in April 1995 showed only a calcaneal spur rather than a fracture. He determined that 

she had 10 percent permanent impairment of her right lower extremity based on the fourth 

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

Impairment (A.M.A., Guides), i.e., the edition then in effect. Dr. Simpson placed appellant at 

maximum medical improvement (MMI) as of February 27, 1997. 

Appellant filed a claim for a schedule award (Form CA-7). On January 8, 1998 OWCP 

awarded her a schedule award for 10 percent permanent impairment of her right lower 

extremity.3 

Appellant stopped work on April 17, 2009 due to withdrawal of the modified carrier 

position. OWCP paid compensation and placed her on the periodic rolls. Appellant was referred 

to vocational rehabilitation services. Effective May 6, 2013 she returned to work as a full-time 

clerk. 

On July 15, 2014 appellant filed a claim for an additional schedule award (Form CA-7). 

On July 23, 2014 OWCP notified her of the medical evidence needed to support such claim, 

including an opinion by a treating physician as to permanent impairment in accord with the sixth 

edition of the A.M.A., Guides. 

 3

 The award contains a typographical error in that it indicates permanent impairment of the left lower extremity 

rather than the right. 
3

In a May 13, 2015 report, Dr. George T. Ricks, an attending Board-certified orthopedic 

surgeon, determined that appellant had five percent permanent impairment of her right lower 

extremity impairment. He cited Table 16-2 (Foot and Ankle Regional Grid) beginning on page 

501 of the sixth edition of the A.M.A., Guides. Citing Table 16-2 on page 503 (for the diagnosis 

of calcaneus fracture), Dr. Ricks determined a class 1, grade C impairment with grade modifiers 

of 1 for functional history (based on full motion and decreased sensation), and 1 for physical 

examination (based on mild palpatory findings). He found that the grade modifier for clinical 

studies was not applicable. The net adjustment was zero, for a final class C permanent 

impairment of the right lower extremity of five percent. Dr. Ricks placed appellant at MMI as of 

January 28, 2014. 

OWCP referred the file to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon 

serving as an OWCP medical adviser, for a calculation of permanent impairment of appellant’s 

right lower extremity. In an August 3, 2015 report, Dr. Harris cited the sixth edition of the 

A.M.A., Guides at Table 16-2 and applied the diagnosis-based impairment rating method for the 

most disabling condition of plantar fasciitis. He determined that appellant had one percent 

permanent impairment of her right lower extremity based on residual pain. Dr. Harris noted that 

the current impairment was less than previously awarded in 1998. 

In a decision dated October 1, 2015, OWCP determined that appellant did not meet her 

burden of proof to establish more than 10 percent permanent impairment of her right lower 

extremity. It found that the record did not contain an opinion that she had more than 10 percent 

permanent impairment of her right lower extremity. 

In an October 7, 2015 letter, appellant, through counsel, requested a telephone hearing 

with an OWCP hearing representative. During the June 1, 2016 hearing, counsel argued that 

OWCP violated her constitutional due process rights by applying the standards of the sixth 

edition of the A.M.A., Guides to her claim for an increased schedule award when it had previously 

applied the standards of the fourth edition of the A.M.A., Guides in connection with awarding the 

1998 schedule award. 

By decision dated July 5, 2016, OWCP’s hearing representative affirmed OWCP’s 

October 1, 2015 decision finding that appellant had not established more than 10 percent 

permanent impairment of her right lower extremity. He found that the recent medical reports of 

record did not contain an opinion that she had more than 10 percent permanent impairment of her 

right lower extremity. 

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, it does not specify 

the manner in which the percentage of loss shall be determined. For consistent results and to 

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404 (1999). 
4

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 appellant sustained a right calcaneal fracture, closed. Appellant 

filed a claim for a schedule award and, on January 8, 1998, OWCP awarded her a schedule 

award for 10 percent permanent impairment of her right lower extremity. In July 2014, she filed 

a claim for an additional schedule award in connection with the accepted injury. By decisions 

dated October 1, 2015 and July 5, 2016, OWCP denied appellant’s claim finding that the medical 

evidence of record did not establish more than 10 percent permanent impairment of her right 

lower extremity, for which she had already been compensated. 

The Board finds that appellant did not meet her burden of proof to establish more than 10 

percent permanent impairment of her right lower extremity, for which she previously received a 

schedule award. 

Appellant submitted a May 13, 2015 report in which Dr. Ricks, an attending physician, 

cited Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501 of the sixth edition of 

the A.M.A., Guides. Dr. Ricks calculated grade modifiers and determined that there was no net 

adjustment from the default class C value of five percent. He concluded that appellant had five 

percent permanent impairment of her right lower extremity under the sixth edition of the A.M.A., 

Guides. 

The Board notes that the submission of this report would not require an award of 

additional schedule award compensation because the report contains an opinion that appellant 

had 5 percent permanent impairment of her right lower extremity and she has already been 

compensated for 10 percent permanent impairment of the same extremity. 

In an August 3, 2015 report, Dr. Harris, an OWCP medical adviser, cited the sixth edition 

of the A.M.A., Guides at Table 16-2 and applied the diagnosis-based impairment rating method 

for the most disabling condition of plantar fasciitis. He determined that appellant had one 

percent permanent impairment of her right lower extremity based on residual pain. Therefore, 

Dr. Harris provided an opinion that the current impairment was less than the 10 percent 

permanent impairment previously awarded in 1998 and his report cannot serve as a basis to 

award her additional schedule award compensation. 

Counsel argues on appeal that OWCP violated appellant’s constitutional due process 

rights by applying the standards of the sixth edition of the A.M.A., Guides to her claim for an 

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

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

7 Id. at Chapter 2.808.5a (February 2013); see also id. at Chapter 3.700, Exhibit 1 (January 2010). 
5

increased schedule award when it had previously applied the standards of the fourth edition of the 

A.M.A., Guides in connection with awarding the 1998 schedule award. The Board notes that it 

was appropriate to apply the standards of the sixth edition of the A.M.A., Guides as her claim for 

increased permanent impairment was evaluated after the effective date of the sixth edition.8

 The 

Board finds counsel’s argument without merit. Moreover, OWCP and the Board do not have 

jurisdiction to review claims regarding constitutional due process rights.9

 

Appellant may request a schedule award or increased schedule award based at any time 

on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment. 

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to establish more than 10 

percent permanent impairment of her right lower extremity, for which she previously received a 

schedule award. 

ORDER 

IT IS HEREBY ORDERED THAT the July 5, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: April 14, 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 

 8 Id. 

9 See Robert F. Stone, 57 ECAB 292 (2005).