United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.B., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

ALEDA E. LUTZ VETERANS MEDICAL 

CENTER, Saginaw, MI, Employer 

__________________________________________ 

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Docket No. 17-0376 

Issued: July 24, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On December 9, 2016 appellant, through counsel, filed a timely appeal from an 

October 24, 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 to consider the merits of this case. 

 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

ISSUE 

The issue is whether appellant has established permanent impairment warranting a 

schedule award. 

On appeal counsel contends that OWCP erred in the weighing of the medical evidence 

and failed to consider all of appellant’s accepted conditions. 

FACTUAL HISTORY 

On September 26, 2003 appellant, then a 40-year-old housekeeping aid, filed a traumatic 

injury claim (Form CA-1) alleging that on September 23, 2003 she sustained injuries to her left 

foot and leg when she fell down a flight of stairs due to a handrail giving way.3

 She stopped 

work on September 23, 2003 and returned to full-duty work on November 4, 2003. OWCP 

accepted the claim for left foot neuritis, left foot and ankle tenosynovitis and right elbow and 

forearm multiple superficial lacerations/open wounds without complications.4

 

On February 13, 2014 appellant filed a claim for a schedule award (Form CA-7). 

In a February 25, 2015 report, Dr. Catherine Watkins-Campbell, an examining Boardcertified physician in occupational and family medicines, concluded that appellant had four 

percent left lower extremity permanent impairment using the sixth edition of the American 

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

provided an injury history, noted medical records reviewed, and physical examination findings. 

Dr. Watkins-Campbell noted the primary impairment diagnosis as left foot neuritis under 

diagnosis-based impairment (DBI) method of impairment rating and left sural nerve under 

peripheral nerve impairment. She found DBI was not applicable and based her impairment 

rating on the sural nerve. Dr. Watkins-Campbell identified a class 1 for the sural nerve based on 

CRPS II using Table 16-2, page 534. She assigned a grade modifier of 2 for functional history 

and found clinical studies were nonapplicable. Applying the net adjustment formula of 

functional history minus clinical diagnosis (GMFH 2 - CDX 1 = 1), resulted moving to the right 

one or grade D with four percent left lower extremity impairment. 

On August 6, 2015 OWCP referred Dr. Watkins-Campbell’s report to an OWCP district 

medical adviser (DMA) for review. In an August 15, 2015 report, Dr. Morley Slutsky, the 

selected DMA Board-certified in occupational medicine, recommended a second opinion 

evaluation as Dr. Watkins-Campbell’s findings were inconsistent with the objective tests and 

prior medical reports. A statement of accepted facts, which Dr. Berman reviewed, indicated that 

appellant suffered a left foot fracture around 1996 and subsequently underwent surgeries in 2000 

or 2001 and 2002. 

 3

 The record reflects that appellant had a preexisting foot injury, when she fell at home in 1996 and sustained a 

left foot fracture for which she underwent surgical repair in 2000 or 2001, and again in 2002. 

4

 The record does not reflect that appellant received FECA wage-loss compensation benefits. 
3

On September 3, 2015 OWCP referred appellant to Dr. Emmanuel Obianwu, a Boardcertified orthopedic surgeon, for a second opinion on whether appellant had permanent 

impairment of her right upper extremity and left foot. In a report dated September 16, 2015, 

Dr. Obianwu noted appellant’s occupational history, employment injury and medical histories, 

medical records he reviewed, and physical examination findings. A physical examination 

revealed full range of motion in the right elbow, wrist, hands and shoulder, no problems with 

ambulating, no subtalar joint motion, a mild valgus left foot, and areas of vague left foot medial 

sensory compromise. Dr. Obianwu diagnosed left foot status post triple arthrodesis, no evidence 

of left foot sural neuritis, and moderate left foot severe degenerative arthritis of the mid tarsal 

joints. He opined that maximum medical improvement had been reached in late 2005 when the 

left foot arthrodesis would have been solid and that neither the condition nor procedure had been 

accepted as employment related. With respect to upper extremity impairment, Dr. Obianwu 

observed that all the lacerations had healed and there was normal function. Thus, he concluded 

that appellant had a zero percent right upper extremity permanent impairment. Next, 

Dr. Obianwu found no evidence of accepted condition of neuritis. Thus, the impairment rating 

for the left lower extremity was zero. Dr. Obianwu observed that appellant’s left foot 

impairment was unrelated to her employment injury and was due to a nonemployment triple 

arthrodesis, which was solid. 

On November 19, 2015 OWCP referred Dr. Obianwu’s report to a DMA for review. In a 

November 23, 2015 report, Dr. Arnold T. Berman, the selected DMA and Board-certified 

orthopedic surgeon, concurred with Dr. Obianwu’s finding of zero percent left lower extremity 

permanent impairment. He noted that appellant was referred to an orthopedic specialist as 

neither Dr. Slutsky nor Dr. Watkins-Campbell were orthopedic specialists and because there 

were a variety of opinions in the record. Dr. Berman applied Dr. Obianwu’s examination 

findings to Table 16-12, page 534, which was the table used by Dr. Watkins-Campbell, and 

assigned a class 0 for sural nerve with no objective sensory deficits. He assigned September 16, 

2015, the date of Dr. Obianwu’s examination, as the date of maximum medical improvement. 

By decision dated December 1, 2015, OWCP denied appellant’s claim for a schedule 

award for her left lower extremity and right upper extremity. It relied upon the opinion of 

Dr. Obianwu, a second opinion Board-certified orthopedic surgeon, who found no ratable 

impairment in either the right upper extremity or the left lower extremity. 

On December 14, 2015 appellant requested a hearing before an OWCP hearing 

representative. A hearing was held on August 9, 2016. 

By decision dated October 24, 2016, OWCP’s hearing representative affirmed the denial 

of appellant’s schedule award claim. The hearing representative found that appellant had not 

established entitlement to a schedule award as the medical reports submitted by appellant failed 

to provide an adequate history of the claim and appellant’s prior medical history to establish 

permanent impairment due to her accepted injury. 
4

LEGAL PRECEDENT 

Under section 8107 of FECA5 and section 10.404 of the implementing federal 

regulations,6

 schedule awards are payable for permanent impairment of specified body members, 

functions or organs. FECA, however, does not specify the manner in which the percentage of 

impairment shall be determined. For consistent results and to ensure equal justice under the law 

for 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.7

 

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).8 Under the sixth edition, the evaluator identifies the impairment Class for 

Diagnosis (CDX) condition, which is then adjusted by grade modifiers based on Functional 

History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).9

 The net 

adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).10

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

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

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

adviser providing rationale for the percentage of impairment specified.11

ANALYSIS 

OWCP accepted that appellant sustained left foot neuritis, left foot and ankle 

tenosynovitis and right elbow and forearm multiple superficial lacerations/open wounds without 

complications due to the accepted September 23, 2003 employment injury. By decision dated 

December 1, 2015, OWCP denied appellant’s claim for a schedule award. An OWCP hearing 

representative affirmed the denial in an October 24, 2016 decision. 

 5

 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404 

7 D.J., 59 ECAB 620 2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000). 

8

 A.M.A., Guides 3 (6th ed. 2009), section 1.3, The International Classification of Functioning, Disability and 

Health (ICF): A Contemporary Model of Disablement. 

9 Id. at 383-419 (6th ed. 2009). 

10 Id. at 411. 

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

Chapter 2.808.6(f) (February 2013). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57 

ECAB 349 (2006).
5

The Board finds that OWCP properly denied appellant’s claim for a schedule award 

based on the opinions of Dr. Obianwu, the second opinion physician, and Dr. Berman, the 

selected DMA. 

Appellant submitted a February 25, 2015 report from Dr. Watkins-Campbell who found 

four percent left lower extremity permanent impairment based on sural nerve sensory impairment 

or CRPS II using Table 16-2, page 534. However, Dr. Watkins-Campbell did not sufficiently 

explain why the accepted condition left foot neuritis caused sural nerve sensory deficits or 

CRPS II especially since a January 19, 2004 EMG found no deficits. The claimant has the 

burden of proving that the condition for which a schedule award is sought is causally related to 

her employment.12

Appellant was referred to Dr. Obianwu for a second opinion evaluation regarding the 

degree and extent of any permanent impairment of her left lower extremity and right upper 

extremity at the request of the DMA, Dr. Slutsky. Dr. Obianwu examined appellant on 

September 16, 2015 and concluded that she had no permanent impairment of her right upper 

extremity or her left lower extremity. He reviewed appellant’s medical record and employment 

injury history. A physical examination revealed full range of motion in the right upper extremity 

and no evidence of left foot sural neuritis. Based on these findings, Dr. Obianwu determined that 

appellant had zero percent permanent impairment of the right upper extremity and zero percent 

permanent impairment of the left lower extremity. 

In accordance with its procedures, OWCP referred the evidence of record to its DMA, 

Dr. Berman, who reviewed Dr. Obianwu’s report and relevant medical evidence and agreed 

appellant had no permanent impairment of the left lower extremity or the right upper extremity 

based on the accepted conditions. 

The record contains no other current medical evidence in conformance with the sixth 

edition of the A.M.A., Guides establishing permanent impairment of appellant’s right upper 

extremity or left lower extremity. The Board finds that appellant has not met her burden of 

proof. 

On appeal counsel contends that OWCP erred in the weighing of the medical evidence 

and failed to consider all of appellant’s conditions. Contrary to counsel’s contentions, OWCP 

considered the medical evidence relevant to permanent impairment and explained why it found 

the medical evidence submitted by appellant insufficient to warrant a schedule award. As noted 

above appellant must establish that permanent impairment is due to the accepted employment 

conditions. Schedule awards are not issued when the impairment is caused solely by a 

nonemployment-related condition. It is appellant’s burden of proof to establish that the 

employment injury contributed to a permanent impairment of a scheduled member or function of 

the body.13

 12 Veronica Williams, 56 ECAB 367 (2005). 

13 See D.E., Docket No. 16-463 (issued May 17, 2016). 
6

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 appellant has not met her burden of proof to establish permanent 

impairment of a scheduled member causally related to her accepted medical conditions. 

ORDER 

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

Compensation Programs dated October 24, 2016 is affirmed. 

Issued: July 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