United States Department of Labor

Employees’ Compensation Appeals Board

_________________________________________

M.J., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Cleveland, OH, Employer

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Docket No. 17-1776

Issued: December 19, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 17, 2017 appellant, through counsel, filed a timely appeal from a June 20, 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 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 five percent 

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

award.

FACTUAL HISTORY

On March 7, 2013 appellant, then a 34-year-old social worker, filed a traumatic injury 

claim (Form CA-1) alleging that she sustained a fractured left ankle and tibia when she fell on ice 

in the employee parking lot and could not get up. She stopped work on March 5, 2013. On 

March 21, 2013 OWCP accepted the claim for fractures of the left ankle bimalleolar and medial 

malleolus. Appellant had OWCP-approved ankle surgery on March 15, 2013. She returned to 

full-duty work on June 3, 2013. OWCP paid appellant wage-loss compensation and medical 

benefits.3

In a July 23, 2015 report, Dr. Alan W. Davis, an orthopedic surgeon, opined that appellant 

reached maximum medical improvement (MMI).

On September 11, 2015 appellant filed a claim for a schedule award (Form CA-7). 

By development letter dated September 14, 2015, OWCP notified appellant that medical 

evidence was needed to establish her schedule award claim. It advised her to submit a detailed 

narrative medical report from her treating physician regarding the nature and extent of her 

permanent impairment, including an impairment rating calculated in accordance with the sixth 

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

(A.M.A., Guides).4 OWCP afforded appellant 30 days to provide the necessary evidence. No 

response was received.

By decision dated October 14, 2015, OWCP denied appellant’s schedule award claim. 

An October 16, 2015 x-ray of the ankles, interpreted by Dr. Ian Fisher, a Board-certified 

diagnostic radiologist, revealed orthopedic nails traverse to the left medial malleolus. He advised 

that no acute fracture was identified and related that there appeared to be mild-to-moderate loss of 

joint space involving the left tibiotalar joint with subchondral sclerosis. Dr. Fisher found that the 

talocrural angle on the right was 13 degrees and on the left 16 degrees. He noted that there did not 

appear to be significant widening of the tibiofibular clear space. Dr. Fisher found moderate 

degenerative changes of the left tibiotalar joint space and findings consistent with prior open 

reduction internal fixation (ORIF) of a medial malleolus fracture.

On October 21, 2015 counsel requested a telephonic hearing before an OWCP hearing 

representative. 

 

3 OWCP initially denied the claim in a July 6, 2005 decision. Appellant requested reconsideration and in a March 7, 

2006 decision, it vacated the denial and accepted the claim for left posterior tibial tendinitis.

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

In a December 30, 2015 report, Dr. Catherine Watkins Campbell, Board-certified in 

occupational medicine, opined that appellant had 14 percent left lower extremity permanent 

impairment due to her left bimalleloar ankle fracture. She noted appellant’s history of injury and 

treatment. Dr. Watkins Campbell’s findings on examination included: a mild antalgic gait and 

inability to toe walk on the left; 3/5 strength deficit with dorsiflexion and 4/5 strength deficit with 

both inversion and eversion. She found restricted range of motion, and bony tenderness. 

Dr. Watkins Campbell referred to Table 16-2 (ankle grid), under joint stability/ankle syndesmosis.

5

 

She determined that appellant fell into a class 2 for a talocrural angle greater than 15 degrees, 

(appellant had 16 degrees), grade C impairment with adjustments of one each for functional history 

(gait deficiency) and physical examination (motion restriction) for a net minus 2, grade A. 

Dr. Watkins Campbell opined that appellant had 14 percent lower extremity permanent 

impairment. She noted that appellant reached MMI on July 23, 2015, as recommended by

Dr. Davis.

By decision dated April 15, 2016, OWCP’s hearing representative advised that a 

preliminary review was conducted, and he determined that the case was not in posture for a 

hearing. He vacated OWCP’s October 14, 2015 decision and remanded the case for a district 

medical adviser (DMA) to provide a rationalized opinion as to the percentage of left lower 

extremity impairment in accordance with the sixth edition of the A.M.A., Guides, as well as to 

determine the date of MMI. OWCP’s hearing representative explained that upon receipt of the 

DMA’s report, and any additional development deemed necessary, OWCP should issue a de novo

decision as to schedule award benefits.

In a report, dated July 15, 2016, the DMA noted appellant’s history of injury and treatment 

and utilized the sixth edition of the A.M.A., Guides. He explained that the diagnosis-based 

impairment (DBI) rating was the preferred rating method. The DMA noted that the lower 

extremity chapter, DBI, Section 16.2, at page 497 states, “[m]ost impairments are based upon the 

[DBI] [c]lass.” It further states, “Range of motion is primarily used as a physical examination 

adjustment factor and is only used to determine actual impairment when it is not possible to 

otherwise define impairment.” The DMA explained that the summary of how to rate the lower 

extremities, on page 552,

6 of the A.M.A., Guides clearly states, “Only if no other approach is 

available to rating, calculate impairment based on range of motion, as explained in Section 15.7.”

The DMA explained that the A.M.A., Guides supported the use of the DBI method for 

lower extremity impairment calculations and that valid range of motion measurements were to be 

used principally as an adjustment factor. He reiterated that the range of motion (ROM) 

methodology was to be used only as a stand-alone impairment approach as an alternative 

impairment method when no other approach was available to rate the lower extremity (such as the 

DBI method which was specific to the accepted injury and applicable in this case). 

The DMA explained that the most impairing diagnosis in the left ankle region was mild 

instability, and advised that this was used in his final impairment calculations.

 

5 A.M.A., Guides 501.

6 The DMA indicated page 551. However, this appears to be a typographical error as the noted summary is actually

found on page 552.
4

The DMA found that appellant had an impairment rating of five percent to the left lower 

extremity. Regarding the date of MMI, he determined that appellant reached MMI on January 16, 

2015, the date of Dr. Watkins Campbell’s impairment examination. The DMA explained that

Dr. Watkins Campbell rated appellant for a talocrural angle of greater than five degrees. However, 

he explained that this was not correct as it was the difference in angle between the affected and 

nonaffected ankles that was rated, not the absolute value. The DMA explained that the right 

(unaffected) talocrural angle was 3 degrees and the left was 6 degrees according to October 16, 

2015 x-rays. He advised that the difference was 3 degrees and this placed appellant into a class 1, 

row 2 for mild joint instability. The DMA noted that the x-ray findings were consistent with the 

mild ligament laxity (class1) found by Dr. Watkins Campbell on examination. He concluded that 

the class 2 used by Dr. Watkins Campbell was an error.

By decision dated August 3, 2016, OWCP granted appellant a schedule award for five 

percent permanent impairment of the left lower extremity. The award covered a period of 14.4 

weeks from October 16, 2015 to January 24, 2016. 

On August 16, 2016 appellant, through counsel, requested a telephonic hearing, held before 

an OWCP hearing representative on April 19, 2017. Counsel argued that the case should be 

remanded back to the DMA, as it was unclear which version of the A.M.A., Guides he utilized. 

Counsel argued that the DMA did not examine appellant, and he failed to supply sufficient medical 

rationale for the placement of appellant in a different class than that indicated by the examining 

physician, Dr. Watkins Campbell.

By decision dated June 20, 2017, OWCP’s hearing representative affirmed the August 3, 

2016 decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA,7and its implementing federal regulations,8set 

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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants and the Board has 

concurred in such adoption.

9

 For schedule awards after May 1, 2009, the impairment is evaluated 

under the sixth edition of the A.M.A., Guides, published in 2009.10

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the 

World Health Organization’s International Classification of Functioning, Disability and Health 

 

7 5 U.S.C. § 8107. 

8 20 C.F.R. § 10.404. 

9

Id. at § 10.404(a); see also Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

10 See D.T., Docket No. 12-503 (issued August 21, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.6a (March 2017); see also Part 3 -- Medical, 

Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
5

(ICF).11 In addressing lower extremity impairments, the sixth edition requires identifying the 

impairment class for the class of diagnosis (CDX) condition, which is then adjusted by grade 

modifiers based on functional history (GMFH), physical examination (GMPE), and clinical studies 

(GMCS).12 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).13

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

should be routed through OWCP’s 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.14

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish more than five 

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

schedule award. 

In support of her claim for a schedule award, appellant submitted a December 30, 2015 

report from Dr. Watkins Campbell, who opined that appellant had 14 percent left lower extremity

permanent impairment due to her left bimalleloar ankle fracture. She reviewed medical records 

and the history of the employment injury. Dr. Watkins Campbell provided examination findings 

and noted that Dr. Davis indicated that appellant had reached MMI on July 23, 2015. She 

referenced Table 16-2 of the A.M.A., Guides (ankle grid), under joint stability/ ankle 

syndesmosis.15 Dr. Watkins Campbell determined that appellant fell into a class 2 for a talocrural 

angle greater than 15 degrees, (appellant had 16 degrees), grade C impairment with adjustments 

of one each for functional history (gait deficiency) and physical examination (motion restriction) 

for a net minus 2, grade A. She opined that appellant had 14 percent permanent impairment of the 

left lower extremity. 

OWCP’s DMA reviewed Dr. Watkins Campbell’s impairment rating and disagreed with 

her assessment. He explained that she made an error when she rated appellant for a talocrural 

angle of greater than 15 degrees as it was the difference in angle between the affected and 

nonaffected ankles that was rated, not the absolute value, which caused her class of 2 to be an 

error. The DMA also explained that the ROM method was only to be utilized when no other 

approach was available. 

The DMA reviewed the case record and determined that appellant had five percent 

permanent impairment of the left lower extremity. Regarding the date of MMI, he determined that 

appellant reached MMI on January 16, 2015, the date of Dr. Watkins Campbell’s impairment 

 

11 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.

12 Id. at 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010). 

13 Id. at 521. 

14 P.R., Docket No. 18-0022 (issued April 9, 2018); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule 

Awards and Permanent Disability Claims, Chapter 2.808.6f (March 2017).

15 Id. at 501.
6

examination. The DMA noted that Dr. Watkins Campbell rated appellant for a talocrural angle of 

greater than five degrees. However, he explained that this was incorrect as it was the difference 

in angle between the affected and nonaffected ankles that was rated, not the absolute value. The 

DMA explained that the right (unaffected) talocrural angle was 3 degrees and the left was 6 degrees

according to October 16, 2015 x-rays. He advised that the difference was three degrees and this 

placed appellant into a class 1, row 2 for mild joint instability. The DMA explained that the x-ray 

findings were consistent with the mild ligament laxity (class1) found by Dr. Watkins Campbell on 

examination. He concluded that the class 2 used by Dr. Watkins Campbell was an error.

The Board finds that the weight of the medical evidence rests with the opinion of OWCP’s 

medical adviser as he provided the only impairment rating that properly applied the sixth edition 

of the A.M.A., Guides. The Board notes that the medical adviser properly reviewed the medical 

record and evaluated appellant’s left lower extremity in accordance with the A.M.A., Guides. The 

medical adviser appropriately applied the sixth edition of the A.M.A., Guides in determining that 

appellant had five percent permanent impairment of the left lower extremity.16 The record does 

not contain any other medical evidence in conformance with the sixth edition of the A.M.A., 

Guides establishing greater than the five percent permanent impairment of the left lower extremity 

previously awarded. Watkins Campbell17 

On appeal counsel for appellant argues that the June 20, 2017 hearing representative’s 

decision ignores T.H., Docket No. 14-0943 (issued November 25, 2016) and FECA Bulletin No. 

17-06 (issued May 8, 2017). The Board has consistently held that the application of T.H. and 

FECA Bulletin No. 17-06 is limited to upper extremity impairment claims. Therefore, based on 

the findings and reasons stated above, the Board finds that counsel’s arguments are not 

substantiated. 

Appellant may request a schedule award or 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 more than five 

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

schedule award.

 

16 M.C., Docket No. 15-1757 (issued March 17, 2016). The only medical evidence that demonstrated a proper 

application of the A.M.A., Guides was the report of the medical adviser). 

17 A.M.A., Guides 516. 
7

ORDER

IT IS HEREBY ORDERED THAT the June 20, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: December 19, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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