United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Columbus, OH, Employer 

__________________________________________ 

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Docket No. 16-1428 

Issued: February 13, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 28, 2016 appellant, through counsel, filed a timely appeal from a June 10, 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. 

ISSUE 

The issue is whether appellant met her burden of proof to establish permanent 

impairment warranting a schedule award. 

 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

FACTUAL HISTORY 

On October 24, 2008 appellant, then a 39-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on October 23, 2008 she sustained injury to her left foot/ankle 

when she came down on a stick with her left foot. OWCP accepted appellant’s claim for left 

ankle sprain and left ankle impingement syndrome. She later stopped work and received 

disability compensation on the daily rolls beginning October 8, 2010. 

On May 13, 2013 appellant underwent OWCP-authorized left ankle arthroscopy with 

extensive debridement. She stopped work on May 13, 2013 and returned to full-duty work on 

November 5, 2013. 

On July 24, 2014 appellant filed a claim for compensation (Form CA-7) claiming a 

schedule award due to her October 23, 2008 work injury. 

In a letter dated January 31, 2014, appellant requested that appellant submit additional 

evidence in support of her schedule award claim, including a medical report containing an 

impairment rating calculated in accordance with the standards of the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 

2009) (A.M.A., Guides). Appellant submitted a number of reports from her physical therapy 

sessions. 

By decision dated March 19, 2014, OWCP denied appellant’s schedule award claim 

because she had not submitted medical evidence containing an impairment rating calculated 

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

Appellant submitted a March 19, 2014 report in which Dr. Martin Fritzhand, an attending 

Board-certified occupational medicine physician, provided an opinion that appellant had a four 

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

Guides. He indicated that, under Table 16-2 (Foot and Ankle Regional Grid), he based his 

impairment rating on the diagnosis-based condition of left ankle arthritis, noting that appellant’s 

three millimeter cartilage interval constituted a class 1 impairment. In a report dated October 27, 

2014, Dr. Fritzhand opined that appellant’s left ankle arthritis was due to the October 23, 2008 

work injury. 

Appellant timely requested a telephonic hearing with an OWCP hearing representative 

which was held on October 1, 2014. In a December 12, 2014 decision, the hearing representative 

set aside OWCP’s March 19, 2014 decision. She remanded the case to OWCP for referral to an 

OWCP physician for an examination and an opinion on permanent impairment, to be followed 

by issuance of an appropriate decision.3

On remand OWCP referred appellant to Dr. James H. Rutherford, a Board-certified 

orthopedic surgeon, for examination and an opinion of the extent of her permanent impairment. 

 3

 The hearing representative indicated that, although the reports of Dr. Fritzhand were not fully rationalized, they 

were sufficient to require further development of the medical evidence, including referral of appellant to an OWCP 

referral physician. 
3

In a January 20, 2015 report, Dr. Rutherford found no permanent impairment, under the sixth 

edition of the A.M.A., Guides, entitling her to a schedule award. He noted that at the time of his 

evaluation appellant had a normal examination of her left ankle and a normal range of motion. 

Recent x-rays of appellant’s left ankle showed a normal joint space and normal mortise of the 

left ankle. Dr. Rutherford opined that, at the time of the January 20, 2015 evaluation, appellant 

had no ratable impairment or a zero percent permanent impairment of her lower extremities. He 

noted, “[Appellant] also does not have a diagnosis of left ankle osteoarthritis as a result of the 

injury of October 23, 2008 and thus she has no ratable impairment related to arthritis.” 

On February 4, 2015 an OWCP medical adviser agreed with Dr. Rutherford’s assessment 

that appellant did not have permanent impairment under the sixth edition of the A.M.A., Guides.

OWCP determined that there was a conflict in the medical opinion evidence between 

Dr. Fritzhand and Dr. Rutherford regarding appellant’s permanent impairment. It referred 

appellant to Dr. John McGrail, a Board-certified orthopedic surgeon, for an impartial medical 

examination and an impairment rating evaluation. 

In a report dated June 23, 2015, Dr. McGrail discussed appellant’s factual and medical 

history, including the findings of diagnostic testing of the left ankle, and reported the findings of 

his examination of appellant on June 17, 2015. He noted that, upon examination, appellant 

exhibited normal range of left ankle motion and that muscle tone was equal in both ankles 

without atrophy. Dr. McGrail indicated that x-rays of appellant’s ankles, which were obtained 

on January 20 and June 17, 2015, showed a left ankle within normal limits and no sign of 

arthritis. He found that appellant’s left ankle appeared identical to her uninjured right ankle in 

the x-ray projections. Dr. McGrail concluded that appellant did not have permanent impairment 

under the sixth edition of the A.M.A., Guides entitling her to a schedule award. He found that 

appellant had a zero percent rating under Table 16-2 beginning on page 501 in that she was rated 

as class 0, indicating no significant objective abnormal findings or muscle or tendon injury. 

Dr. McGrail opined that appellant’s October 23, 2008 work injury had resolved as there was no 

objective evidence of this injury. Dr. McGrail concluded that appellant exhibited no evidence of 

left ankle arthritis and did not qualify for an impairment rating under Table 16-2 for this 

condition. 

On July 26, 2015 an OWCP medical adviser agreed with Dr. McGrail that appellant had 

no permanent impairment under the sixth edition of the A.M.A., Guides.

In a decision dated August 26, 2015, OWCP denied appellant’s claim for a schedule 

award finding that the special weight of the medical evidence on this matter rested with the wellrationalized opinion of Dr. McGrail, the impartial medical specialist. 

Appellant requested a telephonic hearing with an OWCP hearing representative and such 

a hearing was held on March 23, 2016. Counsel testified that appellant did in fact have left ankle 

arthritis and asserted that she should receive a schedule award based on this condition. 

By decision dated June 10, 2016, an OWCP hearing representative affirmed OWCP’s 

August 26, 2015 decision finding that appellant did not meet her burden of proof to establish 

permanent impairment entitling her to a schedule award. 
4

LEGAL PRECEDENT 

The schedule award provision of the 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

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between 

the physician making the examination for the United States and the physician of the employee, 

the Secretary shall appoint a third physician who shall make an examination.”8

 When there are 

opposing reports of virtually equal weight and rationale, the case must be referred to an impartial 

medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical 

evidence.9

 In situations where there exist opposing medical reports of virtually equal weight and 

rationale and the case is referred to an impartial medical specialist for the purpose of resolving the 

conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper 

factual background, must be given special weight.10

ANALYSIS 

OWCP accepted that on October 23, 2008 appellant sustained a left ankle sprain and left 

ankle impingement syndrome. On May 13, 2013 she underwent OWCP-authorized left ankle 

arthroscopy with extensive debridement. On July 24, 2014 appellant filed a Form CA-7 claiming 

a schedule award due to her October 23, 2008 work injury. 

The Board finds that appellant had not met her burden of proof to establish permanent 

impairment entitling her to a schedule award. 

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

7

 Federal (FECA) Procedure Manual, id. at Chapter 2.808.5a (February 2013); Chapter 3.700, Exhibit 1 

(January 2010). 

8

 5 U.S.C. § 8123(a). 

9 William C. Bush, 40 ECAB 1064, 1975 (1989). 

10 R.S., Docket No. 08-1158 (issued January 29, 2009). 
5

The Board notes that OWCP found a conflict in the medical opinion evidence between 

Dr. Fritzhand and Dr. Rutherford regarding appellant’s permanent impairment and referred 

appellant to Dr. McGrail for an impartial examination and an impairment rating evaluation.11

The Board finds that the weight of the medical evidence regarding appellant’s entitlement 

to schedule award compensation rests with the opinion of Dr. McGrail.12 In a report dated 

June 23, 2015, Dr. McGrail noted that, upon examination on June 17, 2015, appellant exhibited 

normal range of left ankle motion and that muscle tone was equal in both ankles without atrophy. 

He indicated that x-rays of appellant’s ankles showed a left ankle within normal limits and no 

sign of arthritis. Dr. McGrail concluded that appellant did not have permanent impairment under 

the sixth edition of the A.M.A., Guides entitling her to a schedule award. He found that 

appellant had a zero percent rating under Table 16-2 beginning on page 501 in that she was rated 

as class 0, indicating no significant objective abnormal findings or muscle or tendon injury. 

Dr. McGrail opined that appellant exhibited no evidence of left ankle arthritis and did not qualify 

for an impairment rating under Table 16-2 for this condition.13

Appellant has not submitted any probative evidence showing that she had a permanent 

impairment under the sixth edition of the A.M.A., Guides causally related to the October 23, 

2008 employment injury. She has therefore failed to meet her burden of proof. 

Appellant may request a 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 did not meet her burden of proof to establish permanent 

impairment entitling her to a schedule award. 

 11 See supra notes 8 and 9. On March 19, 2014 Dr. Fritzhand provided an opinion that appellant had a four 

percent permanent impairment of her left lower extremity under the sixth edition of the A.M.A., Guides. In contrast, 

Dr. Rutherford determined on January 20, 2015 that appellant did not have permanent impairment, under the sixth 

edition of the A.M.A., Guides, entitling her to a schedule award. 

12 See supra note 10. 

13 On July 26, 2015 an OWCP medical adviser agreed with Dr. McGrail that appellant had no permanent 

impairment under the sixth edition of the A.M.A., Guides.
6

ORDER 

IT IS HEREBY ORDERED THAT the June 10, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 13, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board