United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.K., Appellant

and

U.S. POSTAL SERVICE, CLEVELAND 

ANNEX, Cleveland, OH, Employer

__________________________________________

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Docket No. 17-1691

Issued: January 23, 2018

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 3, 2017 appellant, through counsel, filed a timely appeal from a June 6, 2017 

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 to consider the merits of the case. 

ISSUE

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

impairment of her right lower extremity, 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

This case has previously been before Board.3 The facts and circumstances as set forth in 

the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows. 

On June 24, 1997 appellant, then a 39-year-old casual clerk, filed a traumatic injury claim 

(Form CA-1) alleging that, on that date, she sustained an injury to her right leg when a colleague 

rolled a bulk mail carrier into her leg. OWCP accepted her claim for a right leg 

contusion/laceration, tear of the Achilles tendon, tendinitis, and right leg cellulitis. Appellant 

began receiving wage-loss compensation on the supplemental rolls, effective March 2, 2002, and 

on the periodic rolls, effective February 23, 2003. 

On October 6, 2009 OWCP terminated appellant’s wage-loss compensation and medical 

benefits as it determined that she no longer had any functional residuals from her employment 

injury. This termination decision was affirmed by a hearing representative on May 6, 2010 and 

by the Board on May 23, 2011.4 On January 13, 2012 OWCP denied modification of the 

termination decision, and on October 26, 2012 the Board affirmed the January 12, 2012

decision.5

On November 20, 2012 Dr. Jessica Glazer Volsky, an osteopath, conducted a physical 

examination, recorded her findings, and diagnosed right Achilles tendinitis. She found that 

appellant had 31 percent permanent impairment of her right lower extremity pursuant to the sixth 

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

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

6 Dr. Volsky explained that, based on Table 16-2 of the A.M.A., 

Guides, appellant had a class 3 severe problem. She assigned grade modifiers of 2 for functional 

history and 3 for physical examination, which she determined resulted in a net adjustment of 

negative 1. Dr. Volsky concluded that appellant had 31 percent permanent impairment of her 

right lower extremity. 

On January 11, 2013 appellant filed a claim for a schedule award (Form CA-7). 

In a report dated January 31, 2013, OWCP’s medical adviser agreed with the 31 percent 

permanent impairment rating of Dr. Volsky. 

By decision dated April 19, 2013, OWCP denied appellant’s claim for a schedule award, 

based upon a finding that OWCP had terminated her compensation benefits on October 6, 2009 

as she had no residuals from her employment injury. 

 

3 Docket No. 16-0243 (issued May 9, 2016); Docket No. 12-0724 (issued October 26, 2012); Docket No. 10-1572 

(issued May 23, 2011). 

4 Docket No. 10-1572, id. 

5 Docket No. 12-0724, supra note 3.

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

On April 23, 2013 appellant requested a hearing before an OWCP hearing representative. 

By decision dated August 5, 2013, the hearing representative determined that further 

development of the medical evidence was necessary. He noted that termination of compensation 

based upon a finding that appellant no longer had residuals of the accepted condition did not bar 

a subsequent schedule award claim. 

On August 9, 2013 OWCP referred appellant to Dr. Manhal Ghanma, a Board-certified

orthopedic surgeon, for a second opinion examination. In an August 30, 2013 report, Dr. Ghana 

noted her ratable diagnosis as healed right Achilles tendon. He concluded that appellant had no 

residuals from her accepted employment injury. Dr. Ghanma noted that, pursuant to Table 16-2 

of the A.M.A., Guides, she fell into class 0 as she had no significant objective abnormal findings 

of muscle or tendon injury. He noted that there was no current evidence of cellulitis and no 

evidence of any Achilles tendon tear or tendinitis. Dr. Ghanma concluded that appellant had 

reached maximum medical improvement. 

By decision dated September 19, 2013, OWCP denied appellant’s claim for a schedule 

award as it determined that the medical evidence of record failed to demonstrate measurable

permanent impairment of the right lower extremity due to the June 24, 1997 employment injury. 

On September 23, 2013 appellant requested a hearing before an OWCP hearing 

representative. By decision dated May 2, 2014, the hearing representative affirmed the denial of 

the schedule award claim. 

On November 25, 2014 appellant, through counsel, requested reconsideration of the 

May 2, 2014 decision. In support of her claim, appellant submitted an August 8, 2014 report, 

wherein Dr. Catherine Watkins Campbell, a physician Board-certified in family and preventive

medicine, reviewed the medical record and conducted a physical examination. Dr. Watkins 

Campbell determined that pursuant to Table 16-2 of the sixth edition of the A.M.A., Guides, a 

diagnosis of right Achilles tendinitis with minimal palpatory findings would be class 1. She 

noted that, considering the multiple diagnoses associated with the reported disability, a 

functional history modifier of 2 (moderate) rather than 3 (severe) was chosen. Since the 

two-centimeter atrophy on the right was felt to be more likely related to the right knee and 

lumbar radiculopathy conditions and because the other right Achilles tendon findings were 

minimal, a physical examination modifier of 1 was chosen. Dr. Watkins Campbell noted that 

there were no applicable clinical studies. Applying the formula set forth in the A.M.A., Guides, 

a functional history modifier of 1 (2-1) and a physical examination modifier of 0 (1-1) equaled a 

total modifier of 1, which moved the default class C to the right for a class D, which she

determined equaled two percent permanent impairment of the right lower extremity. 

On October 9, 2015 an OWCP medical adviser reviewed the medical evidence of record 

and determined that appellant’s final right lower extremity permanent impairment rating was 

zero percent. He noted a lack of consistent objective findings. 

By decision dated November 3, 2015, OWCP denied modification of the May 2, 2014 

decision. On November 24, 2015 appellant, through counsel, appealed to the Board.
4

By decision dated May 9, 2016, the Board found that a conflict in the medical evidence 

had been created between the opinions of Dr. Ghanma and Drs. Volsky and Watkins Campbell. 

Accordingly, the Board remanded the case for referral to an impartial medical specialist for 

resolution of the conflict.7 The Board also noted that termination of a claim for benefits due to a 

finding of no residuals of the accepted condition does not bar a subsequent schedule award, but 

instead the claims examiner should consider the schedule award separately from the termination 

of benefits.8

By letter dated June 20, 2016, OWCP referred appellant to Dr. Kenneth Chapman, a 

physician Board-certified in pain management and anesthesiology, for an impartial medical 

examination. In a July 18, 2016 report, Dr. Chapman listed appellant’s diagnoses as right 

Achilles tendon tear, tendinitis, and cellulitis in her right leg. He noted that Achilles tendinitis 

was the primary impairing diagnosis. Dr. Chapman opined that appellant had no significant 

residuals from the June 24, 1997 employment injury. He evaluated her impairment pursuant to 

Table 16-2 of the A.M.A., Guides. With regard to appellant’s right ankle, Dr. Chapman 

determined that her diagnosis-based class was 0, and that all of the grade modifiers were 0. 

By memorandum dated August 4, 2016, OWCP referred appellant’s case to OWCP’s

medical adviser for review. In an August 9, 2016 response, the medical adviser listed her

accepted condition as right Achilles tendinitis. He determined that the referee physician,

Dr. Chapman, correctly applied the A.M.A., Guides in determining the extent of appellant’s 

permanent impairment. 

By decision dated August 17, 2016, OWCP denied appellant’s claim for a schedule 

award based on the opinion of the impartial medical examiner, Dr. Chapman.

On August 29, 2016 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative. At the hearing, held on April 7, 2017, the hearing representative 

agreed to hold the record open for 30 days for appellant to submit additional evidence. No 

additional evidence was received. 

By decision dated June 6, 2017, the hearing representative affirmed the August 17, 2016 

decision of OWCP. She determined that OWCP correctly denied schedule award compensation 

based on the referee opinion of Dr. Chapman, who found that appellant had no permanent 

impairment of her right lower extremity under the A.M.A., Guides.

LEGAL PRECEDENT

The schedule award provisions of FECA9and its implementing regulations10 set forth the 

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

 

7 Docket No. 16-0243, supra note 3.

8

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

Claims, Chapter 2.808.6(f) (February 2013). 

9 5 U.S.C. § 8107.

10 20 C.F.R. § 10.404.
5

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 insure equal justice under the law to all claimants, good administrative practice 

necessitates the use of 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.11 The effective date of the sixth edition of 

the A.M.A., Guides is May 1, 2009.12

The sixth edition requires identifying the impairment class for the diagnosed condition 

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 the 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

Section 8123(a) provides that, if there is a 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.16 The implementing regulations 

provide that, if a conflict exists between the medical opinion of the employee’s treating 

physicians and the medical opinion of either a second opinion physician or an OWCP medical 

adviser, OWCP shall appoint a third physician to make an examination. This is called a referee 

examination and OWCP will select a physician who is qualified in the appropriate specialty and 

who has no prior connection with the case.17 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.18

 

11 Id. 

12 See supra note 8 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010); supra note 8

at Chapter 2.808.5a (February 2013).

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

14 Id. at 521.

15 See supra note 8. 

16 R.C., Docket No. 12-0437 (issued October 23, 2012).

17 20 C.F.R. 10.321.

18 F.C., Docket No. 14-0560 (issued November 12, 2015). 
6

ANALYSIS

OWCP accepted appellant’s claim for right leg contusion/laceration, tear of the Achilles 

tendon, tendinitis, and right leg cellulitis, and paid her wage-loss compensation on the periodic 

rolls. On October 6, 2009 it terminated her wage-loss compensation and medical benefits as it 

determined that she no longer had any residuals from her employment injury. 

On January 11, 2013 appellant filed a claim for a schedule award, and on April 19, 2013 

OWCP denied her claim. She appealed to the Board and, by decision dated May 9, 2016, the 

Board set aside the April 19, 2013 decision, finding that further development of the medical 

evidence was necessary. The Board determined that there was an unresolved conflict between 

the opinions of appellant’s treating physicians, Drs. Volsky and Watkins Campbell, and the 

second opinion physician, Dr. Ghanma, with regard to whether appellant had permanent 

impairment of her lower extremity, warranting a schedule award. The Board explained that 

appellant should be referred for an impartial medical examination.19

On remand, OWCP referred appellant to Dr. Chapman for an impartial medical 

examination. Dr. Chapman noted no significant residuals from the June 24, 1997 employment 

injury. He evaluated appellant pursuant to Table 16-2 of the A.M.A., Guides, and determined 

that her diagnosis based class was 0, and that all the grade modifiers were 0. Accordingly,

Dr. Chapman opined that she had no permanent impairment due to her employment-related 

injury. 

Since OWCP referred the case to an impartial medical examiner to resolve a conflict in 

the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned and based 

upon a proper factual background, must be given special weight.20 

The Board finds that the opinion of Dr. Chapman is well-rationalized and that he properly 

applied the A.M.A., Guides. OWCP’s medical adviser agreed with Dr. Chapman’s conclusion 

that appellant did not have permanent impairment of her lower extremity pursuant to Table 16-2 

of the A.M.A., Guides. Therefore, the Board finds that the evidence of record does not establish 

that permanent impairment of a scheduled member, warranting a schedule award. 

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

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 not met her burden of proof to establish permanent 

impairment of her right lower extremity, warranting a schedule award.

 

19 Docket No. 16-0243, supra note at 3.

20 C.H., Docket No. 16-1647 (issued September 12, 2017). 
7

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’

Compensation Programs dated June 6, 2017 is affirmed.

Issued: January 23, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board