United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Lynchburg, VA, Employer 

__________________________________________ 

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Docket No. 16-1759 

Issued: April 24, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 26, 2016 appellant filed a timely appeal from a March 3, 2016 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 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 more than one percent 

permanent impairment of her right lower extremity, for which she received a schedule award. 

 1

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from OWCP’s March 3, 2016 decision was August 30, 2016. Because 

using the September 1, 2016 date the appeal was received by the Clerk of the Appellate Boards would result in the 

loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service 

postmark is August 26, 2016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On June 21, 2013 appellant, then a 54-year-old city carrier, filed an occupational disease 

claim (Form CA-2) for right foot stress fracture and right Achilles tendon rupture. She indicated 

that she first became aware of her claimed condition on May 10, 2013, and first realized it was 

employment related on May 29, 2013. OWCP accepted appellant’s claim for right Achilles 

tendon tear, right calcaneus stress fracture, and right calcaneal spur. On January 9, 2014 

appellant underwent OWCP-authorized Achilles tendon repair and partial calcaneal exostectomy 

on January 9, 2014. OWCP paid disability compensation beginning January 11, 2014, and 

placed appellant on the periodic compensation rolls, effective February 9, 2014. Appellant’s 

surgeon released her to resume regular work effective June 1, 2014. OWCP paid wage-loss 

compensation through May 31, 2014, and appellant retired effective June 1, 2014. 

On May 31, 2015 appellant filed a claim for compensation (Form CA-7) claiming a 

schedule award due to her accepted work conditions. 

In a May 1, 2015 report, Dr. Gautham Gondi, a Board-certified orthopedic surgeon, 

advised that appellant had reached maximum medical improvement (MMI). He also indicated 

that she had seven percent lower extremity impairment under the American Medical Association, 

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

Dr. Gondi did not explain how he arrived at his seven percent impairment rating. 

In November 2015, OWCP referred appellant to Dr. J. Wayne Keeling, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. In a report dated December 2, 2015, 

Dr. Keeling discussed appellant’s factual and medical history and detailed the findings of his 

examination. He reported that range of motion testing of appellant’s right and left ankles 

revealed dorsiflexion of 14 degrees, plantar flexion of 20 degrees, eversion of 14 degrees, and 

inversion of 20 degrees. Appellant had decreased ability to stand on her right heel. Dr. Keeling 

indicated that, using Table 16-22, Ankle Motion Impairments, A.M.A., Guides 549 (6th ed. 

2009), appellant would fall under the mild severity category, which represented seven percent 

impairment of the right lower extremity. Additionally, Dr. Keeling found that appellant had 

some very mild limitation of hindfoot motion which, under Table 16-20, Hindfoot Motion 

Impairments, A.M.A., Guides 549 (6th ed. 2009), constituted two percent permanent impairment 

of her right lower extremity. Adding the seven percent rating to the two percent rating yielded a 

total permanent impairment of appellant’s right lower extremity of nine percent.3

OWCP arranged for the December 2, 2015 report to be evaluated by Dr. Morley Slutsky, 

a Board-certified occupational physician serving as an OWCP medical adviser. On February 13, 

2016 Dr. Slutsky determined that appellant had one percent permanent impairment of her right 

lower extremity. He indicated that he rated appellant’s right lower extremity under the 

diagnosis-based impairment method, noting that this was the preferred method for rating lower 

extremity impairments. Dr. Slutsky posited that it was not appropriate for Dr. Keeling to use the 

range of motion rating method when it was possible to use the diagnosis-based impairment 

method. He indicated that appellant’s right Achilles tendon injury was the most impairing 

 3

 In parts of his evaluation, Dr. Keeling inadvertently referred to rating the left lower extremity, rather than the 

right lower extremity. 
3

diagnosis of her lower extremity and, using Table 16-2, Foot and Ankle Regional Grid, A.M.A., 

Guides 501 (6th ed. 2009), determined that appellant’s condition fell under the class 1 default 

value of one percent. Dr. Slutsky found that there was no net adjustment due to grade modifiers 

and, therefore, determined that appellant had a total permanent impairment of her right lower 

extremity of one percent. 

In a decision dated March 3, 2016, OWCP granted appellant a schedule award for one 

percent permanent impairment of her right lower extremity. The award ran for 2.88 weeks from 

December 2 to 22, 2015 and was based on the impairment rating of Dr. Slutsky, OWCP’s 

medical adviser. 

LEGAL PRECEDENT 

The schedule award provision of 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

The sixth edition requires identifying the impairment Class of Diagnosis (CDX), which is 

then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination 

(GMPE), and Clinical Studies (GMCS).8

 The net adjustment formula is (GMFH-CDX) + 

(GMPE-CDX) + (GMCS-CDX).9

Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower extremities, 

provides that diagnosis-based impairment is the primary method of calculation for the lower limb 

and that most impairments are based on the diagnosis-based impairment where impairment class 

is determined by the diagnosis and specific criteria as adjusted by the grade modifiers for 

functional history, physical examination, and clinical studies. It further provides that alternative 

approaches are also provided for calculating impairment for peripheral nerve deficits, complex 

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404. 

6 Id. See also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013). 

7

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

(January 2010). 

8

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

9 Id. at 521. 
4

regional pain syndrome, amputation, and range of motion. Range of motion is primarily used as 

a physical examination adjustment factor.10 The A.M.A., Guides, however, also explain that 

some of the diagnosis-based impairment grids refer to the range of motion section when that is 

the most appropriate mechanism for grading the impairment. This section is to be used as a 

stand-alone rating when other grids refer to this section or no other diagnosis-based impairment 

sections of the chapter are applicable for rating a condition.11

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 

impairment in accordance with the A.M.A., Guides with the medical adviser providing rationale 

for the percentage of impairment specified.12

ANALYSIS 

The Board finds that this case is not in posture for decision regarding whether appellant 

has more than one percent permanent impairment of her right lower extremity. 

Appellant received a schedule award for one percent impairment to her right lower 

extremity. The March 3, 2016 award was based on a February 13, 2016 impairment rating by 

Dr. Slutsky, an OWCP medical adviser, who reviewed the December 2, 2015 report of 

Dr. Keeling, the second opinion examiner. 

A reasoned opinion by an OWCP medical adviser will not usually constitute the weight 

of the medical evidence in an accepted disability case, even if the medical adviser is a Boardcertified specialist in the appropriate field of medicine and the attending physician is not a 

specialist and offers no rationale. This is because the medical adviser has not examined the 

claimant while the attending physician has.13 The Board notes that while Dr. Slutsky posited that 

appellant’s impairment should be evaluated using the diagnosis-based impairment method, 

Dr. Keeling applied the range of motion method to assess appellant’s degree of permanent 

impairment and application of this rating method yielded nine percent permanent impairment of 

her right lower extremity. 

Where the second opinion examiner’s report fails to adequately explain and/or document 

the physician’s findings, it is incumbent upon OWCP to obtain clarification from its referral 

physician.14 Even if the provided range of motion measurements accurately reflect the extent of 

appellant’s right lower extremity limitations, Dr. Keeling nonetheless failed to explain why 

rating appellant based on range of motion was presumably the most appropriate mechanism for 

grading appellant’s impairment. Once OWCP undertakes development of the record, it must do 

 10 Id. at 497, section 16.2. 

11 Id. at 543; see also D.F., Docket No. 15-0664 (issued January 8, 2016). 

12 Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.808.6(f) (February 2013). 

13 A.A., Docket No. 15-0898 (issued July 28, 2015). 

14 Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.808.6d and 2.808.6f(2)(c) (February 2013). 
5

a complete job in procuring medical evidence that resolves the relevant issues in the case.15 

Accordingly, the case shall be remanded for further development. 

On remand, Dr. Keeling should be provided an opportunity to submit a supplemental 

report explaining which method for rating permanent impairment is most appropriate in this case, 

i.e., the diagnosis-based impairment method or the range of motion method. After such further 

development as OWCP deems necessary, it shall issue a de novo decision regarding the extent of 

appellant’s right lower extremity impairment. 

CONCLUSION 

The Board finds that the case is not in posture for decision regarding whether appellant 

has more than one percent permanent impairment of her right lower extremity. 

ORDER 

IT IS HEREBY ORDERED THAT the March 3, 2016 decision of the Office of 

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

consistent with this decision of the Board. 

Issued: April 24, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 15 Richard F. Williams, 55 ECAB 343, 346 (2004).