United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.P., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

HEADQUARTERS WRIGHT FIELD, AFPC, 

JBSA, Randolph, TX, Employer 

__________________________________________ 

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Docket No. 16-1229 

Issued: April 12, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 24, 2016 appellant, through counsel, filed a timely appeal from an April 21, 

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 has established permanent impairment of his left lower 

extremity sufficient to warrant 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 

On June 25, 2007 appellant, then a 40-year-old painter helper, filed a traumatic injury 

claim (Form CA-1) alleging that on June 6, 2007 he sprained his left ankle when he was getting 

out of his truck, stepped onto uneven asphalt, and twisted his left ankle. 

By decision dated October 26, 2007, OWCP accepted the claim for left ankle sprain. 

On November 18, 2007 appellant filed a claim for a schedule award (Form CA-7). 

In support of his claim, appellant submitted a July 21, 2008 medical report from 

Dr. Martin Fritzhand, a Board-certified urologist, who opined that appellant sustained 19 percent 

permanent impairment of the left lower extremity. 

On September 24, 2008 OWCP referred appellant, a series of questions, a statement of 

accepted facts (SOAF), and the medical record to Dr. Pietro Seni, a Board-certified orthopedic 

surgeon, for a second opinion evaluation to determine whether appellant had sustained 

permanent impairment of the left lower extremity. 

In his September 24, 2008 report, Dr. Seni noted appellant’s history of previous left ankle 

sprains in 2001 and 2005. A July 23, 2007 magnetic resonance imaging (MRI) scan of the left 

ankle showed a bone contusion, a microfracture to the medial malleolus and the inner surface of 

the talis, and chronic sprain/strain of the talofibular and calcaneofibular ligaments. Preexisting 

fibrosis was also noted. An August 22, 2007 x-ray revealed normal findings. Dr. Seni reported 

benign physical examination findings with no instability and swelling, and only slight weakness 

of the posterior tibial tendon indicating mild tibial tendinitis, unrelated to the injury. He further 

noted that appellant’s MRI scan revealed fibrosis of the talofibular and calcaneofibular ligament 

indicating old remote injuries. Dr. Seni opined that there were no residuals of the June 6, 2007 

work injury. He concluded that appellant had reached maximum medical improvement (MMI) 

and sustained no permanent partial impairment of the left lower extremity. 

OWCP routed the case file to Dr. Nabil F. Angley, an orthopedic surgeon and OWCP 

district medical adviser (DMA), for review and a determination as to whether appellant sustained 

a permanent partial impairment of the left lower extremity. In a January 28, 2009 report, 

Dr. Angley concurred with Dr. Seni’s report that appellant sustained no permanent impairment to 

the left lower extremity. 

OWCP found a conflict in the medical evidence and referred the case to Dr. Jonathan J. 

Paley, a Board-certified orthopedic surgeon, for an impartial medical examination. In his 

April 27, 2009 medical report, Dr. Paley concluded that physical examination findings revealed 

no permanent impairment. He reported normal range of motion of the left ankle, normal 

strength, no atrophy of the left leg muscles, and normal sensation and motor power. Dr. Paley 

found no impairment of the left lower extremity. 

The case file was again routed to OWCP’s DMA, Dr. Angley, for review and a 

determination as to whether appellant sustained a permanent partial impairment of the left lower 

extremity. In a July 9, 2009 report, Dr. Angley concurred with Dr. Paley that appellant sustained 

zero percent permanent impairment of the left lower extremity. 
3

By decision dated July 13, 2009, OWCP denied appellant’s claim for a schedule award as 

the evidence was insufficient to establish that he sustained any permanent impairment to a 

member or function of the body. 

On July 17, 2009 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative. A telephone hearing was held on October 6, 2009 where counsel 

argued that the weight of the medical evidence should have rested with Dr. Fritzhand. 

By decision dated November 18, 2009, an OWCP hearing representative affirmed the 

July 13, 2009 decision finding that the medical evidence of record failed to establish permanent 

partial impairment to the left lower extremity causally related to the June 6, 2007 employment 

injury. 

On February 17, 2015 appellant filed another claim for a schedule award. 

In a July 30, 2009 diagnostic report, Dr. Wilfredo J. Suntay, a Board-certified diagnostic 

radiologist, reported that an MRI scan of the left ankle revealed normal findings. He noted that 

osseous structures were intact, bone marrow signal was normal, joint spaces were well 

maintained, medial and lateral ligaments of the ankle were intact, and tendons and musculature 

were unremarkable. 

By letter dated February 26, 2015, OWCP requested that appellant submit an impairment 

evaluation from his attending physician in accordance with the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (hereinafter A.M.A., Guides).3

 

It provided him 30 days to submit the requested impairment evaluation. 

In a February 25, 2015 medical report, Dr. Fritzhand reported that on June 6, 2007 

appellant stepped out of a government vehicle into a pothole and sustained immediate pain and 

swelling to the left ankle. He reported that a July 2007 MRI scan of the left ankle revealed bone 

contusion with trabecular microfracture involving the medial malleolus and medial talus, and 

chronic tear suggested involving the anterior talofibular ligament and calcaneal fibular ligament. 

Dr. Fritzhand provided findings on physical examination and noted that appellant’s subjective 

symptoms were corroborated by the objective findings. He opined that appellant had reached 

MMI in October 2007. In accordance with the sixth edition of the A.M.A., Guides, 

Dr. Fritzhand used Table 16-2 Foot and Ankle Regional Grid to assess appellant’s impairment, 

medial malleolus nondisplaced fracture, with minimal findings as class 1. He assigned a grade 

modifier of 2 for a QuickDASH score of 27, a grade modifier of 1 for physical examination, and 

a grade modifier of 2 for clinical studies. Applying the net adjustment formula, Dr. Fritzhand 

moved appellant from grade C to grade E resulting in seven percent permanent impairment of the 

left lower extremity.4

 

On April 17, 2015 OWCP routed Dr. Fritzhand’s report and the case file to Dr. Morley 

Slutsky, an OWCP district medical adviser, Board-certified in occupational medicine, for review 

 3

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

4 Id. at 503. 
4

and a determination as to whether appellant sustained a permanent partial impairment of the left 

lower extremity and date of MMI. 

In an April 17, 2015 report, Dr. Slutsky opined that appellant sustained zero percent 

permanent impairment of the left lower extremity. He noted that the date of MMI was 

September 24, 2008, the date of Dr. Seni’s examination. Appellant’s left ankle condition had 

stabilized at that time and there was no further treatment planned. He explained that both 

Dr. Seni and Dr. Paley found no ratable deficits, good range of motion, good strength, and the 

July 30, 2009 MRI scan found no abnormalities, all of which were in contrast to Dr. Fritzhand’s 

findings. Dr. Slutsky explained that Dr. Fritzhand’s evaluation may have represented a 

temporary exacerbation, however, two physicians found no left ankle medical conditions 

consistent with the most recent MRI scan of the left ankle. As such, there was no evidence of a 

permanent impairment of the left ankle. Dr. Slutsky concluded that appellant’s sprain had 

resolved quite some time ago with no MRI scan deficits. 

By decision dated July 2, 2015, OWCP denied appellant’s claim for a schedule award as 

the evidence was not sufficient to establish that he sustained any permanent impairment to a 

member or function of the body. 

By letter dated July 8, 2015, appellant, through counsel, requested a telephone hearing 

before an OWCP hearing representative. 

In a January 26, 2016 medical report, Richard Donnini, a Doctor of Osteopathic 

Medicine, noted complaints of left ankle pain, tenderness, full range of motion, and normal 

sensory and strength findings. He diagnosed left ankle sprain and recommended physical 

therapy. 

A telephone hearing was held on February 10, 2016 where counsel for appellant argued 

that appellant’s MRI scan revealed a fracture warranting a ratable impairment. 

By decision dated April 21, 2016, OWCP’s hearing representative affirmed the July 2, 

2015 decision finding that the medical evidence failed to establish that appellant sustained any 

permanent impairment to a member or function of the body warranting a schedule award. 

LEGAL PRECEDENT 

The schedule award provision of FECA and its implementing regulations 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.5

 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 

 5

 5 U.S.C. § 8107; 20 C.F.R. § 10.404. 
5

all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.6

The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World 

Health Organization’s International Classification of Functioning, Disability and Health (ICF). 

For lower extremity impairments, the evaluator identifies the impairment 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).7 The net 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8 Evaluators are 

directed to provide reasons for their impairment rating choices, including choices of diagnoses 

from regional grids and calculations of modifier scores.9

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

should be routed to an OWCP medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides.

ANALYSIS 

OWCP accepted appellant’s claim for left ankle sprain. By decisions dated July 13 and 

November 18, 2009, it had denied his claim for a schedule award. On February 12, 2015 

appellant filed another claim for a schedule award. By decisions dated July 2, 2015 and 

April 21, 2016, OWCP again denied his schedule award claim finding that the evidence was 

insufficient to establish that he sustained any permanent impairment to a member or function of 

the body. 

Appellant has not submitted sufficient evidence to establish that, as a result of his 

employment injury, he sustained any permanent impairment to a scheduled member such that he 

would be entitled to a schedule award. By letter dated February 26, 2015, OWCP informed him 

of the type of evidence necessary to establish his schedule award claim and specifically 

requested that he submit an impairment evaluation from his attending physician in accordance 

with the sixth edition of the A.M.A., Guides. 

In support of his claim, appellant submitted a February 25, 2015 impairment evaluation 

from Dr. Fritzhand who opined that appellant had sustained seven percent permanent impairment 

of the left lower extremity. Dr. Slutsky, serving as OWCP’s district medical adviser, disagreed 

with Dr. Fritzhand’s report and opined that appellant had zero percent permanent impairment of 

the left lower extremity. 

 6 K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition 

will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010). 

7 Supra note 3 at 493-531. 

8 Id. at 521. 

9 R.V., Docket No. 10-1827 (issued April 1, 2011). 
6

The Board finds that the report of Dr. Fritzhand is insufficient to establish appellant’s 

claim for a schedule award. Dr. Fritzhand determined that appellant reached MMI in 

October 2007. Subsequent evaluations by Dr. Seni on September 24, 2008 and Dr. Paley on 

April 27, 2009 found physical examination findings and review of diagnostic testing revealed no 

permanent partial impairment of the left ankle. While Dr. Fritzhand’s February 25, 2015 report 

provides more recent physical examination findings, he utilized stale medical evidence when 

calculating appellant’s impairment rating. Dr. Fritzhand noted findings of the July 2007 left 

ankle MRI scan which revealed bone contusion with trabecular micro fracture involving the 

medial malleolus and medial talus, and chronic tear suggested involving the anterior talofibular 

ligament and calcaneal fibular ligament. He argued that appellant’s subjective symptoms were 

corroborated by the objective evidence described. However, the most recent MRI scan of the left 

ankle was performed on July 30, 2009 by Dr. Suntay. Dr. Suntay reported that the left ankle 

MRI scan was within normal limits as the osseous structures were intact, bone marrow signal 

was normal, joint spaces were well maintained, medial and lateral ligaments of the ankle were 

intact, and tendons and musculature were unremarkable. Dr. Fritzhand failed to utilize the most 

recent clinical studies and did not reconcile the subjective complaints despite clinical studies 

revealing normal findings. Therefore, his report fails to establish that appellant sustained 

permanent impairment of the lower extremity as a result of his employment injury.10 

The Board notes that Dr. Slutsky properly concluded that appellant had no permanent 

impairment to a member or function of the body.11 Dr. Slutsky provided a well-reasoned report 

based on a proper factual and medical history and included detailed findings and rationale 

supporting his opinion. He noted that Dr. Fritzhand’s evaluation differed from prior physician’s 

and may have represented a temporary exacerbation as no left ankle medical conditions were 

consistent with the most recent MRI scan and prior examinations.12 Dr. Slutsky further stated 

that appellant’s condition had not changed significantly since the date of MMI, there was no 

evidence of a ratable condition in the left ankle, and the sprain had resolved quite some time ago 

with no MRI scan deficits. As his report establishes that appellant had zero percent impairment 

of the left lower extremity, the Board finds that OWCP properly denied his claim for a schedule 

award.13

It is appellant’s burden of proof to establish that he sustained a permanent impairment of 

a scheduled member as a result of an employment injury.14 The medical evidence must include a 

description of any physical impairment in sufficient detail so that the claims examiner and others 

reviewing the file would be able to clearly visualize the impairment with its resulting restrictions 

 10 E.D., Docket No. 10-967 (issued January 7, 2011). 

11 W.R., Docket No. 13-492 (issued June 26, 2013). 

12 L.W., Docket No. 12-1613 (issued February 19, 2013). 

13 M.J., Docket No. 13-598 (issued May 8, 2013). 

14 Tammy L. Meehan, 53 ECAB 229 (2001). 
7

and limitations.15 Appellant did not submit such evidence and thus, he has not met his burden of 

proof.16 

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 his burden of proof to establish entitlement to 

a schedule award for permanent impairment of his left lower extremity. 

ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ 

decision dated April 21, 2016 is affirmed. 

Issued: April 12, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 15 See A.L., Docket No. 08-1730 (issued March 16, 2009). 

16 See V.W., Docket No. 09-2026 (issued February 16, 2010); L.F., Docket No. 10-343 (issued 

November 29, 2010).