United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.F., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Schaumberg, IL, Employer

__________________________________________

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Docket No. 17-1122

Issued: November 2, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 1, 2017 appellant, through counsel, filed a timely appeal from a February 27, 

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.

ISSUE

The issue is whether appellant has more than six percent permanent impairment of the 

right lower extremity, for which he previously received schedule awards. 

 

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 March 28, 2011 appellant, then a 57-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained a right ankle condition causally related to 

factors of his federal employment. He indicated on the claim form that he had rolled his right

ankle on November 12, 2009, and he continued to work in pain as his condition worsened. 

Appellant reported that a February 8, 2011 magnetic resonance imaging (MRI) scan showed a 

tear in the right ankle tendon. He stopped work on February 15, 2011. 

OWCP accepted the claim for right ankle sprain and chronic right peroneal tendinitis. 

Appellant began receiving wage-loss compensation on the supplemental rolls as of 

February 28, 2011. He received wage-loss compensation and medical benefits on the periodic 

rolls as of June 13, 2012.

Appellant underwent right ankle surgery on May 20, 2011. In a report of that date,

Dr. Mary Morrell, a Board-certified orthopedic surgeon, indicated that the surgery included right 

peroneal tendon debridement and repair. 

As part of the medical development of the case, OWCP referred appellant to Dr. Allan 

Brecher, a Board-certified orthopedic surgeon for a second opinion evaluation. In a report dated 

July 10, 2012, Dr. Brecher opined that it appeared that appellant’s peroneal tendinitis had 

resolved, but he continued to have foot pain which appeared to be plantar fasciitis and fifth 

metatarsal inflammation. 

In a report dated January 3, 2013, Dr. Morrell diagnosed status post right peroneal tendon 

repair, right foot pain, and possible diabetic neuropathy versus stress fracture. She opined that 

appellant remained disabled from work. 

OWCP determined that there was a conflict in the medical evidence between Drs. Morrell 

and Brecher, and referred appellant to Dr. Michael Pinzur, a Board-certified orthopedic surgeon, 

to resolve the conflict. In an April 23, 2013 report, Dr. Pinzur opined that appellant likely had a 

preexisting cavus deformity that made him prone to developing peroneal tendon disease. He

wrote that it was reasonable to assume appellant rolled his ankle as described. Dr. Pinzur

indicated some of the right foot pain was related to the peroneal tendon injury and repair, and 

some was due to mechanical overloading from the preexisting cavus deformity. He opined that it 

was unlikely appellant could perform his date-of-injury job, and he suspected this disability was 

permanent.

The record indicates that on April 16, 2014 appellant accepted an offer for a full-time 

modified job at the employing establishment.

In a report dated July 3, 2014, Dr. Neil Allen, a Board-certified internist, provided a 

history and results on examination. He reported a stiff gait, limitations on right ankle range of 

motion (ROM), and tenderness along the lateral aspect of the right foot. Dr. Allen indicated that 

there was no instability or weakness. As to permanent impairment, he opined that appellant had 

seven percent right lower extremity permanent impairment. Dr. Allen indicated that he applied 

Table 16-2 of the American Medical Association, Guides to the Evaluation of Permanent 
3

Impairment (A.M.A. Guides),

3 which provides a default lower extremity permanent impairment 

rating of five percent. He then adjusted the default permanent impairment rating to seven 

percent, based on grade modifiers for physical examination, functional history, and clinical 

studies.

OWCP referred the case to Dr. Michael Hellman, a Board-certified orthopedic surgeon 

and OWCP medical adviser, for review. In a report dated August 19, 2014, Dr. Hellman opined 

that appellant’s right lower extremity permanent impairment was one percent under Table 16-2. 

He noted that as appellant had peroneal tendon tear, which required repair on May 20, 2011, “his 

diagnosis is best described as having some mild palpatory findings.” Dr. Hellman opined that 

the default lower extremity permanent impairment rating for the diagnosed condition was one 

percent, because mild motion deficits had not been established, As to grade modifiers, he found 

that clinical studies was not applicable, as this was used to establish the diagnosis. Dr. Hellman

found a grade modifier of one was proper for functional history as appellant had no motion 

deficit, and a grade modifier of one for physical examination due to mild pain over the peroneal 

tendons, resulting in no adjustment from the default one percent.

By decision dated October 6, 2014, OWCP issued a schedule award for one percent right 

lower extremity permanent impairment. The period of the award was 2.88 weeks from 

May 13, 2014. 

Appellant, through counsel, requested a hearing before an OWCP hearing representative 

on October 10, 2014. A hearing was held on May 6, 2015. On July 6, 2015 appellant submitted 

an undated addendum report from Dr. Allen, who again opined that appellant had seven percent 

right lower extremity permanent impairment. He found that appellant did have mild motion 

deficits based on his physical examination.

In a decision dated July 6, 2015, the hearing representative set aside the October 6, 2014 

OWCP decision. He directed OWCP to refer appellant for a second opinion examination with 

respect to a right lower extremity permanent impairment.

OWCP referred appellant to Dr. James Elmes, a Board-certified orthopedic surgeon. In a 

report dated October 22, 2015, Dr. Elmes provided a history, results on examination, and review 

of medical records. He indicated that appellant had medial anterolateral tenderness about the 

right ankle, and he provided ROM testing results. Dr. Elmes diagnosed torn peroneal tendon, 

chronic right peroneal tendinitis, right ankle sprain, and depressive disorder. As to permanent 

impairment, he opined that appellant had six percent right lower extremity permanent 

impairment under Table 16-2. Dr. Elmes diagnosed peroneal tendinitis with mild motion 

deficits, with a default permanent impairment rating of five percent. He used grade modifier two 

for functional history, and one for physical examination. The clinical studies were found to be 

not applicable, as they were used in making the diagnosis. The default permanent impairment 

rating of five percent was adjusted to six percent based on the grade modifiers.

The case was referred to another OWCP medical adviser, Dr. Morley Slutsky, Boardcertified in occupational medicine. In a report dated March 15, 2016, Dr. Slutsky opined that 

 

3

6

th ed. 2009.
4

appellant’s right lower extremity permanent impairment was five percent under Table 16-2. He 

found there would be no adjustment from the default of five percent, as he found a functional 

history grade modifier of one, rather than two as provided by Dr. Elmes. Dr. Slutsky also noted 

that under a ROM approach appellant would have 11 percent right lower extremity permanent 

impairment. He indicated that ROM was primarily used as a physical examination adjustment 

factor, and the diagnosis-based impairment (DBI) method was preferred under the A.M.A.,

Guides.

By decision dated May 24, 2016, OWCP issued an additional schedule award for five 

percent right lower extremity permanent impairment. The period of the award was 14.40 weeks 

from October 22, 2015.

On June 3, 2016 appellant, through counsel, requested a hearing before an OWCP 

hearing representative. During the hearing, held on January 23, 2017, counsel argued that

Dr. Slutsky had referred to a rating of 11 percent permanent impairment, and case should 

therefore be further developed. 

By decision dated February 27, 2017, the hearing representative affirmed the May 24, 

2016 decision. She found the medical evidence of record did not establish greater than five 

percent permanent impairment of appellant’s right lower extremity.

LEGAL PRECEDENT

5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of 

use of a member or function of the body, the claimant is entitled to a schedule award for the 

permanent impairment of the scheduled member or function.4 Neither FECA nor the regulations 

specify the manner in which the percentage of impairment for a schedule award shall be 

determined. For consistent results and to ensure equal justice for all claimants OWCP has 

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

as the uniform standard applicable to all claimants.5 For schedule awards after May 1, 2009, the 

impairment is evaluated under the sixth edition.6

With respect to a foot or ankle impairment, the A.M.A., Guides provides a regional grid 

at Table 16-2.7 The Class of Diagnosis (CDX) impairment is determined based on specific 

diagnosis, and then the default value for the identified CDX is determined.8 The default value 

(grade C) may be adjusted by using grade modifiers for Functional History (GMFH, Table 16-6), 

 

4

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule 

award is payable and the maximum number of weeks of compensation to be paid; additional members of the body 

are found at 20 C.F.R. § 10.404(a).

5 A. George Lampo, 45 ECAB 441 (1994).

6

FECA Bulletin No. 09-03 (March 15, 2009).

7 A.M.A., Guides 501, Table 16-2.

8 The CDX ranges from 0 (n problem) to 4 (very severe problem).
5

Physical Examination (GMPE, Table 16-7), and Clinical Studies (GMCS, Table 16-8). The 

adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).9 

ANALYSIS

OWCP has accepted appellant’s conditions of right ankle sprain and chronic right 

peroneal tendinitis as employment related. With respect to right lower extremity permanent 

impairment, appellant submitted a report dated July 3, 2014 from Dr. Allen, and an undated 

supplemental report from Dr. Allen. According to Dr. Allen appellant had seven percent right 

lower extremity permanent impairment under Table 16-2 of the A.M.A., Guides.

The Board notes that all of the physicians in this case have applied Table 16-2, the DBI 

regional grid for the foot and ankle. Counsel argued during the January 23, 2017 hearing that

Dr. Slutsky, an OWCP medical adviser, had found 11 percent permanent impairment based on 

loss of ankle ROM. However, Dr. Slutsky did not opine that appellant had 11 percent right 

lower extremity permanent impairment under the A.M.A., Guides using the ROM method. 

Rather he actually applied Table 16-2 and found five percent permanent impairment using the 

DBI method. The A.M.A., Guides clearly provide that the DBI method is the primary method of 

evaluation for the lower extremities.10 ROM is used to determine impairment values only when 

it is not possible to otherwise define impairment.11 The physicians in this case properly used the 

DBI method to evaluate appellant’s right lower extremity permanent impairment.

Drs. Allen, Elmes, and Slutsky agreed that for peroneal tendinitis, with mild motion 

deficits, the default (class 1, grade C) lower extremity permanent impairment is five percent

under Table 16-2. The grade C impairment may then be adjusted according to the net adjustment 

formula. Dr. Allen adjusted the permanent impairment to a grade E impairment of seven 

percent. He did not provide a reasoned opinion with respect to the grade modifiers applied. For 

example, for clinical studies adjustment, Dr. Allen referred to Table 17-9, which is for the spine, 

not the lower extremities.

12

 FECA does not provide for a schedule award for impairment to the 

back or to the body as a whole.13

The proper table for the lower extremities clinical studies adjustment is Table 16-8.14 

Moreover, Dr. Elmes and Dr. Slutsky found that a clinical studies adjustment was not applicable, 

as clinical studies were used to determine the diagnosis. If a grade modifier is used for the 

primary placement in the regional grid, it is not used again in the impairment calculation.15 

 

9 The net adjustment is up to +2 (Grade E) or -2 (Grade A).

10 A.M.A., Guides 497. 

11 Id.

12 Id. at 581, Table 17-9.

13 See James E. Jenkins, 39 ECAB 860 (1988); 5 U.S.C. § 8101(20).

14 A.M.A., Guides 519, Table 16-8.

15 Id. 515-16.
6

Dr. Allen does not address the issue. Moreover, he found a grade modifier two for physical 

examination based on moderate palpatory findings. Dr. Allen also noted stability, and lack of 

atrophy, which under Table 16-7 is a grade modifier zero.16 He did not clearly explain why a 

grade modifier two was appropriate.

The Board finds that Dr. Elmes provided a rationalized medical opinion with respect to 

the net adjustment. Dr. Elmes explained that clinical studies were not applicable, as noted 

above. He found that grade modifier 1 (mild problem) was established under Table 16-7 based 

on the physical examination. As to functional history, Dr. Elmes found a grade modifier 2 under 

Table 16-6. While Dr. Slutsky felt it was a grade modifier one, Dr. Elmes explained that he was 

applying the AAOS (American Academy of Orthopedic Surgery) Lower Limb Instrument 

results. Under Table 16-6, Dr. Elmes may use the AAOS Lower Limb Instrument in establishing 

the GMFH.17

Based on the evidence of record, the Board finds that the weight of the evidence is 

represented by Dr. Elmes, who found six percent right lower extremity permanent impairment. 

The Board notes that appellant has previously received schedule awards totaling six percent 

permanent impairment. OWCP issued a schedule award for one percent (2.88 weeks) on 

October 6, 2014, and an additional five percent (14.40 weeks) on May 24, 2016. Appellant has 

received 17.28 weeks of compensation, or six percent of the maximum of 288 weeks for the 

lower extremity under 5 U.S.C. § 8107. Since the weight of the medical evidence established six 

percent right lower extremity permanent impairment, the Board finds appellant has not 

established entitlement to an increased schedule award. 

On appeal counsel argues that the case should be remanded under T.H.18 However, T.H. 

was a case involving the upper extremities and the methods of evaluating upper extremity 

permanent impairment. This case involves the lower extremities, and as noted, all of the 

physicians properly followed the provisions of the A.M.A., Guides and used the DBI method in 

evaluating the permanent impairment. 

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 employmentrelated condition resulting in permanent impairment or increased impairment.19

CONCLUSION

The Board finds appellant has not established more than six percent permanent 

impairment of the right lower extremity permanent for which he previously received schedule 

awards. 

 

16 Id. at 517, Table 16-7.

17 Id. at 516, Table 16-6.

18 Docket No. 14-0943 (issued November 25, 2016).

19 See Linda T. Brown, 51 ECAB 115 (1999).
7

ORDER

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

Compensation Programs dated February 27, 2017 is affirmed. 

Issued: November 2, 2017

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