United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Painesville, OH, Employer 

__________________________________________ 

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Docket No. 16-1294 

Issued: January 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: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 3, 2016 appellant, through counsel, filed a timely appeal from a March 31, 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 that she has 

permanent left lower extremity impairment due to the accepted conditions. 

 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 the Board.3 In an October 24, 2008 order, the 

Board remanded File No. xxxxxx099 to OWCP because, in a March 27, 2008 decision, an 

OWCP hearing representative referenced an additional claim, adjudicated by OWCP under File 

No. xxxxxx604. The Board remanded the case to OWCP to obtain File No. xxxxxx604 and for 

further reconstruction and assemblage deemed necessary, to be followed by a de novo decision 

on the merits of appellant’s claim.4 

On remand, OWCP combined File Nos. xxxxxx099 and xxxxxx604, with the latter 

becoming the master file.5 In a February 10, 2009 decision, OWCP denied appellant’s July 2007 

claim because the record did not contain a detailed and definitive medical opinion explaining 

how her diagnosed degenerative disc disease and disc bulges of the lumbar spine were causally 

related to her employment duties. Appellant, through counsel, timely requested a hearing, that 

was held on August 19, 2009. In an October 23, 2009 decision, an OWCP hearing representative 

affirmed the February 10, 2009 decision. Following an appeal, the Board, in an October 18, 

2010 decision, found that appellant had not established that the diagnosed lumbar spine 

conditions were caused or aggravated by employment factors.6 In 2010, appellant relocated from 

Ohio to Florida. 

Under File No. xxxxxx604, on February 18, 2011 appellant filed a schedule award claim. 

She submitted a July 8, 2011 report in which Dr. William N. Grant, Board-certified in internal 

medicine, described her medical and surgical history and her complaint of constant painful 

discomfort in the left ankle. Left ankle examination demonstrated synovial change and a fallen 

arch with thickening of the plantar aspect of the left foot and marked tenderness to palpation of 

the plantar aspect of the left foot. Dr. Grant advised that, under the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., 

Guides),7

 under Table 16-22, Ankle Motion Impairments, left ankle flexion to 15 degrees yielded 

seven percent impairment, and extension to 50 degrees yielded seven percent impairment. He 

added that, under Table 16-20, Hindfoot Motion Impairments, inversion to 10 degrees yielded 

two percent impairment, and eversion to 8 degrees yielded two percent impairment. Dr. Grant 

added the range of motion impairments, finding a total of 18 percent left leg permanent 

impairment. He then advised that under Table 16-2, Foot and Ankle Regional Grid, appellant 

 3

 Docket No. 08-1396 (issued October 24, 2008) and Docket No. 10-0369 (issued October 18, 2010). 

4

 Docket No. 08-1396 (issued October 24, 2008). Under File No. xxxxxx099, on July 12, 2007 appellant, then a 

54-year-old city letter carrier who had retired in February 2007, filed an occupational disease claim (Form CA-2a) 

alleging that the constant walking and weight-bearing of her mail route caused back problems including bulging 

discs and degenerative disc disease. 

5

 File No. xxxxxx604 had previously been combined with File No. xxxxxx979, a closed file accepted for bilateral 

calcaneal spurs, and File No. xxxxxx264, an open file accepted for left ankle sprain. Under File No. xxxxxx604, 

OWCP accepted appellant’s traumatic injury claim for left ankle sprain and right foot plantar fasciitis. On 

November 4, 2005 OWCP expanded File No. xxxxxx604 to include lumbar radiculopathy. 

6

 Docket No. 10-369 (issued October 18, 2010). 

7

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

had a class 1 impairment with grade modifiers of 2 each for functional history and physical 

examination, which yielded 13 percent diagnosis-based impairment (DBI). Dr. Grant utilized the 

Combined Values Chart and concluded that she had a total of 29 percent permanent impairment 

of the left lower extremity. 

An OWCP medical adviser reviewed Dr. Grant’s report. He noted that DBI could not be 

combined with range of motion, which was a stand-alone impairment and, furthermore, that 

Dr. Grant did not explain his DBI findings. The medical adviser further explained that 

Dr. Grant’s findings were not consistent with the findings by other physicians who noted a 

normal gait, normal strength, etc. He recommended a second opinion. 

In July 2014 OWCP referred appellant to Dr. William Dinenberg, a Board-certified 

orthopedic surgeon, for an evaluation and impairment rating. The statement of accepted facts 

listed accepted conditions as left ankle sprain, right plantar fasciitis, chronic left ankle instability, 

bilateral heel spurs, and lumbar radiculopathy. 

In an August 11, 2014 report, Dr. Dinenberg noted the history of injury for the combined 

case files, appellant’s medical and surgical history, his review of the record including Dr. Grant’s 

report, and those of her current physician, Dr. Michael D. Solomon, Board-certified in 

anesthesiology and pain medicine.8

 He indicated that appellant’s only complaint was back pain. 

Dr. Dinenberg noted that she walked with a nonantalgic gait and climbed on the examination 

table independently. Lumbosacral spine was diffusely tender to light touch in the paraspinous 

region. Straight leg tests were negative bilaterally, and strength 5/5 in quadriceps, hamstrings, 

gastrocsoleus, tibialis anterior, and extensor hallucis longus bilaterally. Examination of the left 

ankle revealed a well-healed surgical scar laterally. Appellant was nontender to palpation over 

the medial and lateral malleolus and had no varus or valgus laxity of the left ankle. No anterior 

drawer or posterior drawer was noted, and the plantar fascia on the left was nontender to 

palpation. Ankle range of motion was equal bilaterally. A well-healed surgical scar on the 

medial hindfoot consistent with prior endoscopic plantar fascial release was noted on the right. 

Dr. Dinenberg diagnosed chronic low back pain without radiculopathy; “right” ankle sprain with 

history of chronic instability, now status post stabilization procedure with resolution of 

instability; and right ankle plantar fasciitis, now status post endoscopic plantar fascial release 

with resolution of symptomatology. He advised that appellant was at maximum medical 

improvement (MMI) on the date of his examination, August 8, 2014, and that she had no 

objective evidence of left ankle instability, having successfully undergone a stabilization 

procedure. 

Dr. Dinenberg further opined that as appellant’s left ankle range of motion was equal to 

that on the right, she had no range of motion impairment, and with no radiculopathy present in 

regard to her lower back, she had no ratable permanent impairment of the lumbosacral spine. He 

 8

 Dr. Dinenberg reviewed an April 17, 2014 treatment note in which Dr. Solomon noted appellant’s complaint of 

back heaviness. He described her pain management. Dr. Solomon first saw appellant on November 19, 2010 and 

submitted pain management notes on a regular basis. He did not evaluate impairment. In December 2014, appellant 

began treatment with Dr. Miguel D. Attias, an anesthesiologist, for pain management. Dr. Attias noted her 

complaint of severe low back pain and described her pain management. He did not provide an impairment 

evaluation. 
4

reported that she had no ratable permanent impairment due to right ankle plantar fasciitis, based 

on a successful plantar fascial release. 

On August 21, 2014 Dr. James W. Dyer, an OWCP medical adviser and a Board-certified 

orthopedic surgeon, indicated that MMI was reached on August 8, 2014. He agreed with 

Dr. Dinenberg’s assessment that appellant had no ratable permanent impairment of either leg due 

to the accepted diagnoses of left ankle sprain, right plantar fasciitis with release, or lumbar 

radiculopathy. Dr. Dyer noted that she had good results from a left ankle stabilization procedure 

and right plantar fascial release, and no radicular pain or sensory deficit of either leg. He 

concluded that appellant had zero impairment of each lower extremity. 

By decision dated August 25, 2014, issued under File No. xxxxxx604, OWCP found that 

appellant was not entitled to a schedule award for either lower extremity due to the accepted 

conditions of left ankle sprain and other joint derangement, right plantar fibromatosis, and 

thoracic or lumbosacral neuritis or radiculitis. It found that the weight of the medical evidence 

rested with the opinion of Dr. Dinenberg, as reviewed by OWCP’s medical adviser. 

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

representative and submitted a December 9, 2014 impairment evaluation from Dr. Robert R. 

Reppy, an osteopath. He advised that she was wearing orthopedic shoes with arch supports. 

Calf circumference was 34.5 centimeter (cm) on the right and 36.5 on the left; thigh 

circumference 50 cm on the right and 45 cm on the left. Plantar flexion was 40 degrees on the 

right and 45 degrees on the left, with extension 30 degrees on the right and 25 degrees on the 

left. Right ankle inversion was 51 degrees, eversion 50 degrees; left ankle inversion was 

39 degrees and eversion 35 degrees. Straight leg raising was positive bilaterally, and deep 

tendon reflexes were diminished bilaterally. Moderate spasticity was present in the para-lumbar 

muscles, with diminished sensation to monofilament testing distal to the ankles bilaterally along 

the distribution of the L4-5 and L5-S1 nerve roots. Dr. Reppy diagnosed status post 

reconstruction of the left ankle, plantar fasciitis, and lumbar radiculopathy/neuritis, grade 2 left 

ankle sprain, calcaneal spurs, and talar dome defect. He advised that appellant was at MMI, and 

rated impairment under the A.M.A., Guides. 

Dr. Reppy indicated that under Table 16-20, left ankle inversion of 10 degrees and 

eversion of 8 degrees yielded two percent impairment, and that under Table 16-22, plantar 

flexion of 15 degrees and dorsiflexion of 5 degrees yielded seven percent impairment. He 

further found that, under Table 16-2, appellant had a class 1 impairment for a diagnosis of 

moderate ligamentous laxity of 10 to 15 degrees. Dr. Reppy found grade modifiers of 2 for 

functional history and 4 for physical examination. After applying the net adjustment formula, he 

concluded that appellant had a grade E, class 1 left lower extremity DBI of 13 percent. 

Dr. Reppy further rated appellant’s legs under Table 15-14, Sensory and Motor Severity 

of the upper extremity, finding a class 1 (mild) impairment based on abnormal monofilament 

testing. Under Table 16-12, Peripheral Nerve Impairment-Lower Extremity Impairments, 

Dr. Reppy advised that, for tibial nerve impairment, appellant had a class 1, mild motor deficit. 

He found grade modifiers of 2 for functional history, 4 for physical examination, and 1 for 

clinical studies. After applying the net adjustment formula, Dr. Reppy found nine percent left 

lower extremity peripheral nerve impairment. He then utilized the Combined Values Chart and, 
5

by combining appellant’s DBI of 13 percent for ligamentous laxity with 9 percent peripheral 

nerve impairment, he concluded that appellant had 16 percent lower extremity permanent 

impairment. 

At the hearing, held on March 17, 2015, appellant testified that her left ankle continued to 

ache. Counsel maintained that Dr. Reppy’s report should be considered. 

In a June 3, 2015 decision, an OWCP hearing representative remanded the case to OWCP 

for review of Dr. Reppy’s report by OWCP’s medical adviser, to be followed by a de novo

decision. 

On June 8, 2015 Dr. Dyer, OWCP’s medical adviser, reviewed the record, including 

Dr. Reppy’s report. He indicated that Dr. Reppy incorrectly used the A.M.A., Guides, noting 

that he improperly combined range of motion with a DBI impairment, and that he did not apply 

the A.M.A., Guides newsletter for appellant’s spinal nerve root impairments. Dr. Dyer 

concluded that her leg impairments remained at zero percent. 

By decision dated June 16, 2015, issued under File No. xxxxxx604, OWCP found that 

appellant was not entitled to a schedule award for either lower extremity due to the accepted 

conditions. 

Appellant, through counsel, timely requested a hearing, that was held on 

February 8, 2016. She testified that her right foot hurt occasionally, and that her left ankle hurt 

more. Appellant stated that she was on medication and had steroid injections for back pain. 

Counsel argued that Dr. Dyer improperly analyzed Dr. Reppy’s report and maintained that, at the 

least, a conflict in medical evidence had been created. 

In a March 31, 2016 decision, an OWCP hearing representative found that the weight of 

the medical evidence rested with the opinion of Dr. Dyer and affirmed the June 16, 2015 

decision. 

LEGAL PRECEDENT 

It is the claimant’s burden of proof to establish that he or she sustained a permanent 

impairment of a scheduled member or function as a result of any employment injury.9

 

The schedule award provision of FECA10 and its implementing federal regulations,11 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 for all claimants, OWCP has adopted 

 9 See Tammy L. Meehan, 53 ECAB 229 (2001). 

10 5 U.S.C. § 8107. 

11 20 C.F.R. § 10.404. 
6

the A.M.A., Guides as the uniform standard applicable to all claimants.12 For decisions issued 

after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.13

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).14 Under the sixth edition, for lower extremity impairments the evaluator 

identifies 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).15 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - 

CDX).16 Under Chapter 2.3, evaluators are directed to provide reasons for their impairment 

rating choices, including choices of diagnoses from regional grids and calculations of modifier 

scores.17 Section 16.2a of the A.M.A., Guides, provides that if the class selected is defined by 

physical examination findings or clinical studies results, these same findings may not be used as 

grade modifiers to adjust the rating.18

Although the A.M.A., Guides includes guidelines for estimating impairment due to 

disorders of the spine, under FECA a schedule award is not payable for injury to the spine.19 In 

1960, amendments to FECA modified the schedule award provisions to provide for an award for 

permanent impairment to a member of the body covered by the schedule regardless of whether 

the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as 

the schedule award provisions of FECA include the extremities, a claimant may be entitled to a 

schedule award for permanent impairment to an extremity even though the cause of the 

impairment originated in the spine.20

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating 

spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an 

alternative approach to rating spinal nerve impairments.21 OWCP has adopted this approach for 

rating impairment of the upper or lower extremities caused by a spinal injury, as provided in 

 12 Id. at § 10.404(a). 

13 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a 

(February 2013). 

14 Supra note 7 at 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF): A 

Contemporary Model of Disablement.” 

15 Id. at 494-531. 

16 Id. at 521. 

17 Id. at 23-28. 

18 Id. at 500. 

19 Pamela J. Darling, 49 ECAB 286 (1998). 

20 Thomas J. Engelhart, 50 ECAB 319 (1999). 

21 Rozella L. Skinner, 37 ECAB 398 (1986). 
7

section 3.700 of its procedures, which memorializes proposed tables outlined in the July to 

August 2009, The Guides Newsletter.

22 Specifically, OWCP will address lower extremity 

impairments originating in the spine through Table 16-1123 and upper extremity impairment 

originating in the spine through Table 15-14.24 

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

should be routed to 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.25 In determining entitlement to a 

schedule award, preexisting impairment to the scheduled member is to be included.26

ANALYSIS 

Under appellant’s combined files, OWCP accepted left ankle sprain, right plantar 

fasciitis, chronic left ankle instability, bilateral heel spurs, and lumbar radiculopathy. The Board 

has evaluated the evidence of record and finds that she has not met her burden of proof to 

establish permanent impairment of the left leg due to the accepted conditions. 

The July 8, 2011 report submitted by Dr. Grant, who opined that appellant had 29 percent 

left lower extremity impairment, was not in accordance with the A.M.A., Guides. He rated her 

left ankle under both the range of motion and DBI methods. Section 16.2 of the A.M.A., Guides

provides that a rating based on range of motion cannot be combined with other approaches and is 

primarily used as a physical examination adjustment factor.27 The Board has long held that an 

opinion which is not based upon the standards adopted by OWCP and approved by the Board as 

appropriate for evaluating schedule losses is of little probative value in determining the extent of 

a claimant’s impairment.28 Dr. Grant’s opinion is therefore of limited probative value regarding 

her left lower extremity impairment. 

Likewise, Dr. Reppy’s report is insufficient to establish permanent impairment of the left 

leg. He rated appellant both using range of motion measurements and under the DBI method. In 

finalizing his impairment rating, he only used the DBI method, finding 13 percent impairment 

for moderate ligamentous laxity, and combined this with a peripheral nerve impairment of 9 

percent, finding a total left lower extremity impairment of 16 percent. Regarding his DBI 

impairment, Dr. Reppy indicated that a stress fluoroscopy, done in February 2007, showed a 15 

 22 FECA Transmittal No. 10-04 (issued January 9, 2010); supra note 13 at Chapter 3.700, Exhibit 1, note 5 

(January 2010); The Guides Newsletter is included as Exhibit 4. 

23 Supra note 7 at 533. 

24 Id. at 425. 

25 See supra note 13 at Chapter 2.808.6(f) (February 2013). 

26 Peter C. Belkind, 56 ECAB 580 (2005). 

27 Supra note 7 at 497; see B.W., Docket No. 14-1834 (issued September 18, 2015). 

28 Carl J. Cleary, 57 ECAB 563 (2006). 
8

degree talar tilt which, under Table 16-2, yielded a class 1 impairment for moderate ligamentous 

laxity. The record, however, indicates that the stress fluoroscopy was done by Dr. Tozzi in 

June 2002, not in February 2007, and this was prior to the stabilization procedure done by 

Dr. Tozzi in October 2002.29 Following the surgery, Dr. Tozzi reported that appellant’s left 

ankle was very stable and that the surgery rehabilitated her ankle.30 Thus, Dr. Reppy’s basis for 

finding a DBI due to moderate ligamentous laxity is based on an inaccurate history. Moreover, 

he indicated that he based appellant’s physical examination grade modifier of 4 on atrophy of 

4.0 cm or more. This again raises questions because, while he found the left thigh smaller than 

the right, measuring 45 cm and 50 cm respectively, he found the left calf larger than the right, 

measuring 36.5 cm and 34.5 cm respectively. Lastly, Dr. Reppy’s impairment rating for 

peripheral nerve impairment was not done properly. As noted above, the proper mechanism for 

rating impairment of the upper or lower extremities caused by a spinal injury is provided in 

section 3.700 of OWCP procedures, which memorializes proposed tables outlined in the July to 

August 2009 The Guides Newsletter.

31 In finding a peripheral nerve impairment of nine percent, 

Dr. Reppy referenced Table 15-14, which is to be used for upper extremity impairments, and 

Table 16-12. Specifically, OWCP will address lower extremity impairments originating in the 

spine through Table 16-1132 and upper extremity impairment originating in the spine through 

Table 15-14.33 For these reasons, Dr. Reppy’s opinion is of diminished probative value and 

insufficient to meet appellant’s burden of proof to establish impairment of the left lower 

extremity.34

The Board finds that Dr. Dinenberg’s opinion represents the weight of the medical 

evidence. In his comprehensive August 11, 2014 report, Dr. Dinenberg described extensive 

physical examination findings properly applied the A.M.A., Guides, and advised that appellant 

had no objective evidence of instability of the left ankle, having successfully undergone a 

stabilization procedure. He further opined that she had no range of motion impairment, and no 

ratable impairment of the lumbosacral spine. There are no additional impairment ratings in the 

combined case record. 

It is appellant’s burden of proof to establish permanent impairment.35 The Board has 

carefully reviewed Dr. Dinenberg’s report and finds that his opinion has reliability, probative 

value, and convincing quality with respect to its conclusions regarding the relevant issue in the 

present case. Dr. Dinenberg’s opinion was based on a proper factual and medical history, and he 

thoroughly reviewed the factual and medical history and accurately summarized the relevant 

 29 Supra note 5. 

30 Id. 

31 Supra note 22. 

32 Supra note 7 at 533. 

33 Id. at 425. 

34 Supra note 28. 

35 See supra note 9. 
9

medical evidence.36 He provided medical rationale for his opinion by explaining that, after 

careful review of all medical documentation and his clinical examination of appellant, appellant 

had no ratable impairment due to the accepted conditions. Appellant, therefore, has not 

established permanent impairment of the left leg. 

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. 

CONCLUSION 

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

lower extremity impairment due to the accepted conditions. 

ORDER 

IT IS HEREBY ORDERED THAT the March 31, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 13, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 36 See D.K., Docket No. 15-1312 (issued October 6, 2015).