United States Department of Labor

Employees’ Compensation Appeals Board

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A.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Clermont, FL, Employer

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Docket No. 18-1061

Issued: November 9, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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, 2018 appellant filed a timely appeal from a February 15, 2018 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(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 met her burden of proof to establish permanent 

impairment of her left lower extremity due to her October 10, 2014 employment injury.

FACTUAL HISTORY

OWCP accepted that on October 10, 2014 appellant, then a 44-year-old rural carrier, 

sustained a right foot sprain due to twisting her right ankle/foot while delivering mail on that date. 

 

1 5 U.S.C. § 8101 et seq.
2

Appellant stopped work on October 10, 2014 and returned to limited-duty work on 

December 13, 2014.2 She returned to her regular-duty job on January 2, 2015. 

In a January 30, 2015 report, Dr. Paul Dowdy, an attending Board-certified orthopedic 

surgeon, indicated that appellant reported that her right foot/ankle pain had improved and that her 

right ankle did not give way. Appellant also reported that she had been performing her regular 

duty. Dr. Dowdy detailed the findings of his January 30, 2015 physical examination of appellant’s 

right ankle/foot, noting that there was no swelling of appellant’s right ankle/foot and normal 

alignment of the hindfoot. Appellant had no deformity of the ankle/foot and she was nontender 

laterally and medially. Dr. Dowdy reported that range of motion of the right ankle was plantar

flexion to 60 degrees and dorsiflexion to 10 degrees with normal subtalar motion. There was no 

tenderness over the peroneal tendons and no evidence of subluxation of these tendons. Dr. Dowdy 

diagnosed right ankle sprain and indicated that appellant could perform full-duty work.

In a January 26, 2017 report, Dr. Samy F. Bishai, an attending Board-certified orthopedic 

surgeon, noted that appellant presented complaining of right ankle/foot pain and swelling. He

advised that his physical examination revealed that appellant had swelling in her right ankle and 

foot located on the medial, lateral, and anterior sides. Appellant had right ankle range of motion 

of dorsiflexion to 10 degrees, plantar flexion to 20 degrees, inversion to 20 degrees, and eversion 

to 5 degrees. Dr. Bishai advised that appellant walked with an antalgic gait and she limped on the 

right side. He diagnosed severe sprain of the right ankle/foot, and ruled out torn ligaments of the 

right ankle/foot. Dr. Bishai noted that he was evaluating appellant’s right lower extremity 

permanent impairment using the range of motion (ROM) rating method found in Table 22 on page 

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

3

 He found that appellant’s dorsiflexion of 10 

degrees equaled 7 percent right lower extremity impairment and that her plantar flexion of 20 

degrees also equaled 7 percent right lower extremity impairment. Dr. Bishai combined these 

values to conclude that appellant had a total permanent impairment rating for her right lower 

extremity of 14 percent.

4

On March 13, 2017 appellant filed a schedule award claim (Form CA-7) due to her 

accepted October 10, 2014 employment injury.

In a March 17, 2017 development letter, OWCP requested that appellant submit additional 

evidence in support of her schedule award claim, including a report in which an attending physician 

evaluated her permanent impairment under the standards of the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5

 

2 Appellant received continuation of pay for 45 days and OWCP paid her partial disability compensation on the 

daily rolls for the period November 24 to December 12, 2014.

3 Dr. Bishai indicated that he was using the ROM rating method to rate appellant’s permanent impairment because 

the diagnosis-based impairment (DBI) rating method would not compensate appellant for range of motion deficits in 

her right ankle/foot, a problem which affected all activities of her daily living and work.

4 Dr. Bishai found that appellant reached maximum medical improvement (MMI) on January 26, 2017, the date of 

his examination.

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

Appellant submitted an April 6, 2017 report in which Dr. Bishai noted that his physical 

examination on that date showed swelling in the right ankle and foot located on the medial, lateral, 

and anterior sides. Appellant had right ankle range of motion of dorsiflexion to 10 degrees, plantar 

flexion to 20 degrees, inversion to 20 degrees, and eversion to 5 degrees. Dr. Bishai advised that 

appellant walked with an antalgic gait and she limped on the right side. He diagnosed severe sprain 

of the right ankle/foot, and ruled out torn ligaments of the right ankle/foot. Dr. Bishai again noted 

that he was evaluating appellant’s right lower extremity permanent impairment using the ROM 

rating method found in Table 22.

6

 He found that appellant’s dorsiflexion of 10 degrees equaled 7 

percent right lower extremity impairment and that her plantar flexion of 20 degrees also equaled 7 

percent right lower extremity impairment. Therefore, appellant had a total permanent impairment 

rating for her right lower extremity of 14 percent.

7

On April 18, 2017 OWCP referred appellant’s case to Dr. Michael M. Katz, a Boardcertified orthopedic surgeon, to serve in his capacity as an OWCP medical adviser. It requested 

that Dr. Katz review Dr. Bishai’s April 4, 2017 report and provide his own calculation of 

appellant’s right lower extremity permanent impairment under the sixth edition of the A.M.A.,

Guides. 

In an April 21, 2017 report, Dr. Katz indicated that he had reviewed Dr. Bishai’s April 4, 

2017 report. He determined that there was a conflict in medical opinion/information between the 

findings of Dr. Bishai and Dr. Dowdy which could not be resolved on the basis of a medical record 

review.8 Therefore, Dr. Katz recommended that appellant be referred for a second opinion 

examination by an orthopedic surgeon or physical medicine and rehabilitation physician who is 

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

On September 15, 2017 OWCP referred appellant for a second opinion examination to

Dr. Richard C. Smith, a Board-certified orthopedic surgeon. It requested that Dr. Smith provide 

an opinion on appellant’s right lower extremity permanent impairment using the sixth edition of 

the A.M.A., Guides. 

In an October 12, 2017 report, Dr. Smith discussed appellant’s factual and medical history 

and noted that she presented with complaints of right ankle/foot pain. He reported the findings of 

the physical examination he conducted on that date, noting that appellant had no swelling, warmth, 

erythema, induration, or deformity in her right ankle/foot. Appellant had normal alignment of her 

right ankle/foot and there was no instability. Dr. Smith found that appellant had normal range of 

motion of the right ankle upon dorsiflexion, plantar flexion, inversion, and eversion. He did not 

find tenderness to palpation in any muscle group of the right ankle/foot and he did not record motor 

strength less than 5/5 in any of these muscle groups. In the permanent impairment rating portion 

of his report, Dr. Smith advised that appellant did not have objective findings to support the pain 

 

6 With respect to his use of the ROM rating method, Dr. Bishai indicated that the A.M.A., Guides provides that, if 

more than one method is available for rating a particular condition under the A.M.A., Guides, the method producing 

the higher rating must be used.

7 Dr. Bishai again found that appellant reached MMI on January 26, 2017, the date of his earlier examination.

8 Dr. Katz noted that, on January 30, 2015, Dr. Dowdy recorded that appellant had 60 degrees of right ankle 

dorsiflexion, but that Dr. Bishai later recorded that appellant had only 20 degrees of right ankle dorsiflexion.
4

complaints in her right ankle/foot. He found that, given these findings, applying the DBI rating 

method under Table 16-2 meant that appellant’s right ankle/foot sprain fell under class 0 and 

equaled zero percent permanent impairment of her right lower extremity. Dr. Smith determined 

that appellant had reached MMI as of October 12, 2017, the date of his examination.

OWCP referred Dr. Smith’s October 12, 2017 report to Dr. Katz for review and evaluation 

in his capacity as an OWCP medical adviser. In a January 24, 2018 report, Dr. Katz indicated that 

he agreed with Dr. Smith’s opinion that appellant had no right lower extremity permanent 

impairment under the DBI rating method found in Table 16-2 of the sixth edition of the A.M.A., 

Guides. He also considered whether appellant had a right lower extremity permanent impairment 

under the ROM rating method. However, Dr. Katz found that the ROM rating method was not 

available as an alternative to the DBI rating method because the key diagnostic factor in this case, 

i.e., appellant’s right ankle sprain, was not eligible for ROM rating method under Table 16-2. He

found that appellant had reached MMI on October 12, 2017, the date of Dr. Smith’s examination. 

By decision dated February 15, 2018, OWCP found that appellant had not met her burden 

of proof to establish permanent impairment of her right lower extremity due to her October 10, 

2014 employment injury. It found that the opinions of Dr. Smith and Dr. Katz showed that she 

had no such permanent impairment.

LEGAL PRECEDENT

The schedule award provisions of FECA,9and its implementing federal regulations,

10 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 

the A.M.A., Guides as the uniform standard applicable to all claimants.11 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.12

In determining impairment for the lower extremities under the sixth edition of the A.M.A., 

Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity 

to be rated. With respect to the foot/ankle, the relevant portion of the leg for the present case, 

reference is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501.13 After the 

class of diagnosis (CDX) is determined from the Knee Regional Grid (including identification of 

a default grade value), the net adjustment formula is applied using the grade modifier for functional 

history (GMFH), grade modifier for physical examination (GMPE) and grade modifier for clinical 

 

9 5 U.S.C. § 8107.

10 20 C.F.R. § 10.404.

11 Id.

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 

2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 

13 See A.M.A., Guides 501-08 (6th ed. 2009).
5

studies (GMCS). The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX).14

OWCP procedures provide that an OWCP medical adviser’s primary medical functions are 

evaluating medical evidence and interpreting physician reports. An OWCP claims examiner seeks 

evaluation from OWCP’s medical adviser in order to proceed with developing and weighing the 

medical evidence.

15

ANALYSIS

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

impairment of her right lower extremity due to her October 10, 2014 employment injury.

OWCP accepted appellant’s claim for a right ankle sprain sustained at work on 

October 10, 2014. In March 2017 appellant filed a claim for compensation seeking a schedule 

award due to her accepted October 10, 2014 employment injury. OWCP denied her claim on 

February 15, 2018 based on the opinions of Dr. Smith, OWCP’s referral physician, and Dr. Katz, 

OWCP’s medical adviser.

The Board finds that the reports of Dr. Smith and Dr. Katz show that appellant has no 

permanent impairment of her right lower extremity and appellant has not submitted probative 

medical evidence establishing that she has permanent impairment of that extremity.

In his October 12, 2017 report, Dr. Smith properly found that appellant had no right lower 

extremity permanent impairment under the relevant standards.16 He advised that appellant did not 

have objective findings to support the pain complaints in her right ankle/foot.17 Dr. Smith found 

that, given these findings, applying the DBI rating method under Table 16-2 meant that appellant’s 

right ankle/foot sprain fell under class 0 and equaled zero percent permanent impairment of her 

right lower extremity.18 

Dr. Katz supported Dr. Smith’s permanent impairment determination in his January 24, 

2018 report. He also properly found appellant had no right lower extremity permanent impairment 

under the DBI rating method found in Table 16-2 of the sixth edition of the A.M.A., Guides. 

 

14 Id. at 515-22.

15 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.8(b), (c) (September 2010).

16 The Board notes that it was proper for Dr. Katz, in his role as OWCP medical adviser, to recommended referral 

of appellant to a second opinion examiner given the contrasting findings in the case record regarding appellant’s right 

ankle/foot condition. See supra note 15 regarding the role of the medical adviser.

17 Dr. Smith reported that, upon examination, appellant had no swelling, warmth, erythema, induration, or deformity 

in her right ankle/foot. The results for range of motion testing of appellant’s right ankle were normal, motor strength 

was 5/5 throughout her right ankle/foot, and there was no tenderness to palpation.

18 See A.M.A., Guides 501-07, Table 16-2. Dr. Smith determined that appellant had reached MMI as of October 12, 

2017, the date of his examination.
6

Dr. Katz considered whether appellant had a right lower extremity permanent impairment under 

the ROM rating method. He correctly opined that the ROM rating method was not available as an 

alternative to the DBI rating method because the key diagnostic factor in this case, i.e., appellant’s 

right ankle sprain, was not eligible for ROM rating method under Table 16-2.19 

On appeal appellant argues that Dr. Bishai’s January 26 and April 6, 2017 evaluations, 

which applied the ROM method of rating permanent impairment, establish that she has 14 percent 

permanent impairment of her right lower extremity. However, as noted above, Dr. Katz explained 

that use of the ROM rating method would be improper in appellant’s case because, under the 

A.M.A., Guides, the ROM rating method was not available as an alternative to the DBI rating 

method for appellant’s ankle/foot diagnosis. Therefore, Dr. Bishai’s opinion on permanent 

impairment is of limited probative value. The Board has held that an opinion on permanent 

impairment is of limited probative value if it is not derived in accordance with the standards 

adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses.20

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 permanent 

impairment of her right lower extremity due to her October 10, 2014 employment injury.

 

19 Id. Dr. Katz found that appellant reached MMI on October 12, 2017, the date of Dr. Smith’s examination.

20 See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding 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 permanent impairment).
7

ORDER

IT IS HEREBY ORDERED THAT the February 15, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 9, 2018

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