United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.R., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Oklahoma City, OK, Employer

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Docket No. 18-0022

Issued: April 9, 2018

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 October 2, 2017 appellant filed a timely appeal from a September 12, 2017 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 more than 25 percent 

permanent impairment of his right lower extremity, for which he previously received a schedule 

award.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On November 19, 1998 appellant, then a 49-year-old material handler, filed a traumatic 

injury claim (Form CA-1) alleging that on November 18, 1998 he sustained a right ankle injury at 

work. He claimed that he was standing on a “Big Joe” pallet jack that was driven by a coworker. 

The Big Joe moved forward and appellant fell approximately 10 feet. Appellant stopped work on 

the date of injury.

OWCP accepted the claim for right ankle fracture and a left calcaneus fracture. It 

authorized an open reduction and internal fixation of the fractured left calcaneus performed on 

November 30, 1998. OWCP paid appellant compensation benefits on the supplemental rolls

effective January 17, 1999.

On February 1, 1999 appellant returned to limited-duty work. On February 19, 1999 he

underwent authorized irrigation and debridement with attempted secondary closure ulceration of 

the left heel. Appellant returned to full-time, limited-duty work on April 26, 1999. He stopped

work again on June 10, 1999 due to a wound infection and received compensation benefits on the 

daily rolls. On July 19, 1999 appellant returned to full-time, limited-duty work. 

By decision dated January 28, 2000, OWCP terminated appellant’s wage-loss 

compensation benefits effective January 4, 2000 as his actual wages as a supply technician fairly 

and reasonably represented his wage-earning capacity.2 It explained that these wages either met 

or exceeded the wages of his date-of-injury position. Medical benefits continued. 

By decision dated February 24, 2000, OWCP granted appellant a schedule award for 25 

percent permanent impairment of each lower extremity. The schedule award was paid during the 

period January 21, 2000 to October 25, 2002, for a total of 144 weeks of compensation. 

On February 15, 2016 appellant underwent subtalar and talonavicular fusions and 

arthroscopy of the right ankle performed by Dr. Richard Langerman, Jr., a Board-certified 

orthopedic surgeon. Dr. Langerman noted preoperative diagnoses of talonavicular and subtalar 

arthrosis with possible right ankle arthrosis. He noted postoperative diagnoses included moderate 

right ankle arthrosis with advanced talonavicular and subtalar arthritis.

On February 13, 2017 appellant filed a claim for an additional schedule award (Form 

CA-7).

By development letter dated February 22, 2017, OWCP requested that appellant submit 

additional medical evidence in support of his schedule award claim, including an impairment 

rating, which applied the standards of the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).

3

 It afforded appellant 30 

days to submit the requested information.

 

2 Appellant voluntarily retired from the employing establishment effective December 28, 2012. 

3 A.M.A., Guides (6th ed. 2009).
3

In an April 26, 2017 medical report, Dr. John W. Ellis, a Board-certified family 

practitioner, related a history of the November 18, 1998 employment injury and appellant’s 

medical background. He reviewed medical records, including diagnostic test results. Dr. Ellis 

noted appellant’s complaints related to his right ankle. A Bragard’s sign could not be done because 

of the fusion of the right ankle. Pressure on the tarsal tunnels did not cause any numbness in the 

feet. The right ankle had surgical scars and was fused in a position of function. There was 

hypertrophy of the bones of the medial and lateral malleoli and anteriorly and posteriorly in the 

ankle. Appellant walked with an antalgic gait due to the fused right ankle. There was no swelling 

over the ankles. Appellant wore a brace on his right ankle. He reported that above the brace, he 

sometimes had swelling where the sock ended. Dr. Ellis found no pitting edema in the feet. He 

diagnosed secondary osteoarthritis of the right ankle and foot, chondromalacia of the right ankle 

and joints of the right foot, and fracture of the right ankle. Dr. Ellis opined that, based on his 

examination, review of the medical and other records, appellant’s impairment arose out of and in 

the course of appellant’s employment. He determined that appellant had reached maximum 

medical improvement (MMI) as of April 13, 2017, the date Dr. Langerman referred appellant for 

an impairment evaluation. Thus, Dr. Ellis advised that appellant could be rated for permanent 

partial impairment.

Regarding impairment of the right lower extremity, Dr. Ellis utilized Table 16-2 on page 

507 of the sixth edition of the A.M.A., Guides, and found 50 percent diagnosis-based impairment 

(DBI) due to subtalar and talonavicular fusions of the ankle. Under Table 16-22 on page 549, he 

found 37 percent impairment due to decreased range of motion (ROM) of the ankle. Dr. Ellis 

utilized Table 16-20 on the same page and found 10 percent impairment due to decreased range of 

motion of the hindfoot. He added the ROM impairment ratings for a total 47 percent impairment. 

Dr. Ellis used the Combined Values Chart to combine the 37 percent and 10 percent ROM

impairment ratings to find 43 percent total combined impairment. He concluded that appellant 

had 50 percent permanent impairment of the right lower extremity based on the DBI method.

Dr. Ellis noted Table 2-1, No. 12 on page 20, which indicated that the method producing the higher 

rating should be used.

On June 5, 2017 Dr. Arthur S. Harris, an OWCP medical adviser and a Board-certified 

orthopedic surgeon, reviewed the medical record, and Dr. Ellis’ April 26, 2017 findings. He also 

noted appellant’s February 15, 2016 right ankle arthroscopy with subtalar and talonavicular fusion, 

which documented arthroscopic findings of grade 2 to 3 degenerative changes in the tibiotalar 

joint. Dr. Harris related that a September 7, 2016 right ankle computerized tomography scan 

demonstrated degenerative changes in the ankle with postsurgical changes in the subtalar joint. In 

determining impairment to appellant’s right lower extremity, he used Table 16-2 on page 508 of 

the sixth edition of the A.M.A., Guides and found 13 percent impairment due to a satisfactory 

result following right ankle arthroscopy with subtalar and talonavicular fusion (CDX 1E). Dr. 

Harris further found, under Table 16-2 on page 506, three percent impairment based on 

documented degenerative changes of the ankle. He utilized the Combined Values Chart and 

combined the two impairment ratings to calculate 16 percent right lower extremity permanent 

impairment. Dr. Harris related that the A.M.A., Guides did not allow for impairment ratings to be 

calculated on the ROM method for the diagnosed condition. He maintained that appellant had 16 

percent impairment of the right lower extremity resulting from the accepted November 18, 1998 

work injury. Dr. Harris determined that the date of MMI was April 26, 2017, the date of Dr. Ellis’

impairment evaluation. He disagreed with Dr. Ellis’ impairment rating as it was based on the 
4

ROM method. Dr. Harris related that the A.M.A., Guides provides that the DBI method was the 

preferred rating method. He further related that the A.M.A., Guides provides that the ROM method 

was used primarily as a physical examination adjustment factor and only to determine actual 

impairment values in the rare case when it was not possible to otherwise define impairment. 

Dr. Harris indicated that, as discussed in his review, appellant’s impairment was easily defined 

using the DBI method for having undergone talonavicular and subtalar fusions, as well as,

documented degenerative joint disease of the ankle.

By decision dated September 12, 2017, OWCP denied appellant’s claim for an additional 

schedule award. It based its determination on Dr. Harris’ June 5, 2017 report which evaluated the 

April 26, 2017 findings of Dr. Ellis relative to appellant’s right lower extremity.

4

 

LEGAL PRECEDENT

The schedule award provision of FECA5and its implementing federal regulations6set forth 

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

from loss or loss of use, of scheduled members, functions, and organs of the body. FECA, 

however, does not specify the manner by which the percentage loss of a member, function, or 

organ shall be determined. To ensure consistent results and equal justice for all claimants under 

the law, good administrative practice requires the use of uniform standards applicable to all 

claimants.7 The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.8 As of May 1, 2009, schedule awards are 

determined in accordance with the sixth edition of the A.M.A., Guides (2009).9 The Board has 

approved the use by OWCP of the A.M.A., Guides for the purpose of determining the percentage 

loss of use of a member of the body for schedule award purposes.10 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 are to be included.11

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

 

4 OWCP noted that appellant had previously received a schedule award for his right and left lower extremities.

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404.

7 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 

8

Id.

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

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

2.808.5a (February 2013).

10 Isidoro Rivera, 12 ECAB 348 (1961).

11 See Dale B. Larson, 41 ECAB 481, 490 (1990); supra note 7 at Part 3 -- Medical, Schedule Awards, Chapter 

3.700.3.a.3 (January 2010). This portion of OWCP procedures provides that the impairment rating of a given 

scheduled member should include any preexisting permanent impairment of the same member or function.
5

and Health (ICF).12 Under the sixth edition, the evaluator identifies the impairment class for the 

Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on Functional History 

(GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).13 The net adjustment 

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14

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

should be routed to an OWCP 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.15

ANALYSIS

The Board finds that this case is not in posture for decision.

OWCP accepted appellant’s claim for right ankle fracture and a left calcaneus fracture. It 

authorized an open reduction and internal fixation of the fractured left calcaneus performed on 

November 30, 1998. OWCP granted appellant a schedule award for 25 percent permanent 

impairment of each lower extremity. Appellant underwent an arthroscopy of the right ankle with 

subtalar and talonavicular fusion on February 15, 2016. On February 13, 2017 he filed a claim for 

an increased schedule award. 

In an April 26, 2017 report, Dr. Ellis, an attending physician, utilized the DBI method for 

rating appellant’s permanent impairment and identified the diagnosis of subtalar and talonavicular 

ankle fusion on page 507 of the A.M.A., Guides. He opined that, under Table 16-2 of the sixth 

edition of the A.M.A., Guides, appellant had 50 percent permanent impairment of the right lower 

extremity. The Board notes that while Dr. Ellis also rated appellant’s right lower extremity 

impairment using ROM methodology, he ultimately concluded that appellant’s impairment should 

be rated using Table 16-2, page 507, for the diagnosis of joint ankylosis fusion, of the talarcalcaneal, talar-navicular. 

In a June 5, 2017 report, Dr. Harris, an OWCP medical adviser, similarly utilized the DBI 

method, but identified the diagnosis of subtalar and talonavicular ankle fusion on page 508 of the 

A.M.A., Guides. He utilized Table 16-2 of the sixth edition of the A.M.A., Guides and found 13 

percent impairment due to a satisfactory result following surgery. Dr. Harris further found, under 

Table 16-2 on page 506, three percent impairment based on documented degenerative changes of 

the ankle. He utilized the Combined Values Chart and combined the two impairment ratings to

find that appellant had 16 percent permanent impairment of the right lower extremity. 

 

12 A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability 

and Health (ICF): A Contemporary Model of Disablement.

13 Id. at 494-531.

14 Id. at 521.

15 See supra note 7 at Chapter 2.808.6(f) (February 2013).
6

The Board finds that there is an unresolved conflict as to the impairment related to 

appellant’s right lower extremity between Dr. Ellis and Dr. Harris based upon the proper diagnosis 

utilized within Table 16-2. The Board notes that both utilized the DBI methodology, but relied 

upon different diagnoses classifications for appellant’s condition. If there is disagreement between 

OWCP’s medical adviser and appellant’s physician, OWCP will appoint a third physician who 

shall make an examination.16 For a conflict to arise, the opposing physicians’ viewpoints must be 

of virtually equal weight and rationale.17 The Board finds that the two medical opinions of

Dr. Ellis and Dr. Harris are of equal weight. The dispute between these physicians centers on their 

use of Table 16-2, which ostensibly supported their respective opinions. Accordingly, there was 

an unresolved conflict in medical opinion regarding the extent of appellant’s right lower extremity 

impairment.

Because there is an unresolved conflict in medical opinion regarding the extent of 

appellant’s right lower extremity impairment, pursuant to 5 U.S.C. § 8123(a), the case will be 

remanded to OWCP for referral of appellant, together with the medical record and a statement of 

accepted facts, to an appropriate Board-certified specialist for an impartial medical examination to 

determine the extent and degree of appellant’s right lower extremity permanent impairment in 

accordance with the sixth edition of the A.M.A., Guides. After such further development as 

OWCP deems necessary, it shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision.

 

16 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

17 Darlene R. Kennedy, 57 ECAB 414 (2006).
7

ORDER

IT IS HEREBY ORDERED THAT the September 12, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: April 9, 2018

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