United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Flemington, NJ, Employer

__________________________________________

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Docket No. 17-1995

Issued: August 13, 2018

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 26, 2017 appellant, through counsel, filed a timely appeal from April 4 and 

August 23, 2017 merit decisions 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.

 

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 greater than 20 percent permanent impairment of the 

right lower extremity for which he previously received schedule award compensation.

3

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the prior Board decisions are incorporated herein by reference. The relevant facts are as follows.

On March 12, 2007 appellant, then a 55-year-old supervisor of customer service, filed an 

occupational disease claim (Form CA-2) alleging that he sustained exacerbation of a foot 

deformity and torn right knee meniscus due to factors of his federal employment. He noted that 

he first became aware of his claimed condition on May 18, 2000 and that it was related to his 

federal employment on December 14, 2006. OWCP assigned the present claim File No. 

xxxxxx373 and accepted it for right lower extremity conditions of aggravation of preexisting 

diabetic neuropathy, right flatfoot, arthropathies associated with neurological disorders, and tear 

of the medial meniscus of the knee.

Appellant also has a prior relevant OWCP claim under File No. xxxxxx316. On October 4, 

2004 appellant, then a 52-year-old distribution window clerk, filed a traumatic injury claim (Form 

CA-1). OWCP accepted the claim for lumbar sprain and thoracic or lumbosacral neuritis or 

radiculitis. Its File Nos. xxxxxx373 and xxxxxx316 have been administratively combined, with 

File No. xxxxxx373 serving as the master file.

5

Appellant filed a claim for a schedule award (Form CA-7) on December 15, 2006 under 

OWCP File No. xxxxxx316. OWCP granted him a schedule award on January 16, 2007 for four 

percent permanent impairment of each lower extremity. It denied modification of this schedule 

award by decision dated July 26, 2007. Appellant subsequently requested reconsideration. On 

March 7, 2008 OWCP denied modification of its July 26, 2007 decision. 

Appellant appealed to the Board. By decision dated January 14, 2009, the Board found

that he had not established more than four percent permanent impairment of each lower extremity 

due to spinal nerve impairment.6 

On October 19, 2009 appellant filed a claim for an increased schedule award. 

 

3 Appellant’s left lower extremity permanent impairment rating is not the subject of this appeal.

4 Docket No. 08-1744 (issued January 14, 2009); Docket No. 13-2072 (issued September 19, 2014). 

5 The record also reflects that appellant also has a third claim, adjudicated by OWCP under File No. xxxxxx902, 

and accepted for bilateral carpal tunnel syndrome. File No. xxxxxx902 has not been administratively combined with 

appellant’s other two claims and is not a part of this appeal. 

6 Docket No. 08-1744 (issued January 14, 2009). 
3

By decision dated February 19, 2010, OWCP granted appellant a schedule award for an 

additional 9 percent permanent impairment, for a total of 13 percent permanent impairment of the 

right lower extremity. 

After further development of the medical evidence, OWCP expanded acceptance of the 

claim to include aggravation of Charcot’s arthropathy and tear of medial meniscus of the right 

knee. On November 10, 2010 it granted appellant a schedule award for an additional 7 percent 

permanent impairment, for a total of 20 percent permanent impairment of the right lower extremity. 

On September 12, 2013 appellant appealed to the Board. By decision dated September 19, 

2014, the Board concluded that a conflict in the medical evidence remained regarding appellant’s 

lower extremity impairment. The Board remanded the case to OWCP to prepare a new statement 

of accepted facts and forward the case record to a new impartial medical specialist.7

On March 12, 2015 OWCP referred appellant to Dr. Donald F. Leatherwood, II, a Boardcertified orthopedic surgeon, for an impartial evaluation.8

In an April 21, 2015 report, Dr. Leatherwood noted his review of the medical record and 

appellant’s report of the employment-related conditions and complaints of stabbing low back pain 

that radiated down both legs, a throbbing right knee and foot, with difficulty walking and standing. 

He described examination findings of the lumbar spine and both lower extremities. 

Dr. Leatherwood performed an impairment evaluation using the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (hereinafter the A.M.A., Guides),9and advised

that he found no employment-related neurologic deficit in appellant’s lower extremities and no 

ongoing radicular issues of an objective nature. He noted electromyography (EMG) findings 

claiming to show radicular issues and opined that EMGs were notoriously subjective on the part 

of the practitioner and were historical in nature whereby a person could be fully recovered from a 

neurologic issue yet the EMG could remain positive for several years or even forever. 

Dr. Leatherwood indicated that he found no left lower extremity impairment of any kind. With 

regard to appellant’s right knee, he noted that, under Table 16-3, Knee Regional Grid, a maximum 

partial meniscal injury yielded three percent impairment. Dr. Leatherwood noted that appellant’s 

right knee magnetic resonance imaging (MRI) scan demonstrated no cartilage deficit, but, since 

the condition had been accepted, he found an additional five percent impairment. He noted that,

under Table 16-23, Knee Motion Impairments, appellant’s loss of knee range of motion yielded 

10 percent impairment. Dr. Leatherwood concluded that, as range of motion yielded the higher 

rating, appellant had 10 percent right lower extremity impairment of the knee. As to the right 

ankle and foot, for loss of range of motion under Table 16-20 and Table 16-22, appellant had 12 

percent impairment and that under Table 16-2, Foot and Ankle Regional Grid, for metatarsal 

fracture-dislocation, he had a class 2, 16 percent impairment, which was greater than 12 percent 

based on range of motion. Dr. Leatherwood then combined the 10 percent knee impairment with 

 

7 Supra note 5.

8 The record includes an OWCP ME023 appointment schedule notification form and a bypass log. 

9 A.M.A., Guides (6th ed. 2009).
4

the 16 percent foot impairment, and concluded that appellant had 24 percent right lower extremity 

impairment.

In a July 15, 2015 report, Dr. Arnold Berman, a Board-certified orthopedic surgeon serving 

as OWCP’s medical adviser, noted that he had previously reviewed this case. He reviewed

Dr. Leatherwood’s report and agreed that appellant was not entitled to an additional schedule 

award for left lower extremity. Dr. Berman also agreed with Dr. Leatherwood that appellant had 

a total 24 percent right lower extremity impairment. 

By decision dated September 8, 2015, OWCP granted appellant a schedule award for an 

additional 4 percent permanent impairment of the right lower extremity, for a total of 24 percent

permanent impairment of the right lower extremity.

On September 16, 2015 appellant requested a hearing before an OWCP hearing 

representative. By decision dated March 30, 2016, an OWCP hearing representative remanded the 

case to OWCP. She found that OWCP did not direct Dr. Leatherwood to obtain x-rays of 

appellant’s right foot, ankle, and knee. The hearing representative further found that

Dr. Leatherwood did not sufficiently document his range of motion measurements or his

assignment of class or grade modifiers to support his impairment ratings. She noted that OWCP 

did not advise Dr. Leatherwood to use The Guides Newsletter to assess appellant’s lower extremity 

impairment caused by spinal injury, and that he failed to provide sufficient rationale to support his 

opinion that the EMG and nerve conduction velocity (NCV) findings were not reliable in this case. 

The hearing representative remanded the case to OWCP to refer appellant for reexamination by

Dr. Leatherwood, to obtain the foot, ankle, and knee x-rays, and to provide an impairment analysis 

in accordance with the A.M.A., Guides, including the July/August 2009 The Guides Newsletter. 

Following this, OWCP was to refer the referee’s report to an OWCP medical adviser other than

Dr. Berman for review, to be followed by a de novo decision as to the degree of appellant’s lower 

extremity permanent impairment.

Appellant submitted standing anteroposterior, oblique, and lateral view x-rays of the right 

foot and ankle dated April 6, 2016. The right foot demonstrated progression of neuropathic joint 

disease in the mid-foot with sclerosis, osteophytosis, and deformity which had progressed from a 

December 12, 2006 study. Pes planus was again seen. The right ankle showed only minimal 

degenerative disease. Anteroposterior, lateral, anteroposterior tunnel, and patellar sunrise views 

of the right knee on April 6, 2016 demonstrated chondrocalcinosis, as seen on May 8, 2013 films, 

and mild degenerative change. An EMG/NCV study of the lumbar paraspinals and both lower 

extremities on April 14, 2016 demonstrated many denervation potentials compatible with severe 

bilateral L4-5 lumbar radiculopathy. Prolonged peroneal, tibial, and sural nerve conduction 

velocities in both lower extremities suggested superimposed polyneuropathy. 

OWCP again referred appellant to Dr. Leatherwood for examination and an impairment 

evaluation in accordance with the A.M.A., Guides, including its July/August 2009 The Guides 

Newsletter. In a July 19, 2016 report, Dr. Leatherwood noted his review of actual x-rays, and 

appellant’s report of sciatic pain down both legs, and right knee, foot, and ankle pain. Physical 

examination demonstrated chronic changes to suggest vascular insufficiency of a mild-tomoderate nature. Light touch sensation was intact throughout, and motor strength was 5/5 for all 

major motor groups of both lower extremities. Straight leg raise testing was negative bilaterally. 
5

Examination of appellant’s right ankle and foot revealed obvious chronic valgus deformity. The 

ankle was stable to varus and valgus stress with tenderness in the area of the lateral joint line. The 

foot and medial aspect were nontender. The right knee demonstrated no synovitis, effusion, or 

instability with tenderness in the lateral joint line greater than the medial joint line. The patella 

was nontender and tracking appropriately, and the knee had normal stability to varus and valgus 

stress, negative Lachman testing.

Dr. Leatherwood noted his review of the actual April 6, 2016 x-ray films of appellant’s 

right foot, ankle, and knee. He indicated that right foot x-rays demonstrated sclerotic changes and 

bone atrophy primarily at the area of the midfoot with pes planus and spurring. Right ankle x-ray 

showed minimal degenerative disease, and right knee x-ray demonstrated general degenerative 

changes throughout. Dr. Leatherwood also reviewed the March 18, 2010 lumbosacral MRI scan. 

He indicated that it revealed degenerative disc disease throughout with degenerative disc 

protrusion at L2-3, L3-4, and L4-5. Dr. Leatherwood also noted the findings of the April 14, 2016 

EMG/NCV. He advised that, in accordance with Proposed Table 2 of the July/August 2009 The 

Guides Newsletter, appellant had mild sensory deficits at L3, L4, L5, and S1 based on subjective 

complaints and EMG/NCV findings. Dr. Leatherwood concluded that appellant had one percent 

permanent impairment for each nerve root, for a total four percent lower extremity impairment, 

which correlated with the previously awarded schedule award for appellant’s lower extremity 

impairment due to his lumbar spine injury. He also found an additional one percent impairment 

utilizing Table 17-4, Lumber Spine Regional Grid. Regarding appellant’s right knee,

Dr. Leatherwood indicated that appellant had full right knee motion, but that in his previous 

examination appellant had decreased motion. He noted that the right knee x-ray demonstrated no 

loss of cartilage, and found that, under Table 16-3, appellant had 3 percent impairment for the 

meniscus and 5 percent impairment for the patella, for 8 percent total but, based of appellant’s 

previous loss of knee motion, he would give appellant the benefit of the doubt and found 10 percent 

right lower extremity permanent impairment due to loss of right knee motion. For the right foot 

and ankle, Dr. Leatherwood indicated that, under Table 16-2, for a diagnosis of metatarsal fracture 

dislocation, appellant had 16 percent right foot and ankle impairment. By using the Combined 

Values Chart, he concluded that appellant’s 10 percent knee impairment combined with 16 percent 

foot and ankle impairment, yielded 24 percent impairment, combined with 4 percent neurological 

impairment for a total 27 percent permanent impairment of the right lower extremity. 

OWCP referred the record to Dr. Michael M. Katz, a Board-certified orthopedic surgeon 

and OWCP medical adviser, for review. In an August 22, 2016 report, Dr. Katz noted his review 

of Dr. Leatherwood’s April 21, 2015 and July 19, 2016 reports. He advised that, while

Dr. Leatherwood reviewed and documented pertinent history and diagnostic reports and performed 

a focused physical examination addressing the accepted conditions, he did not properly apply the 

methodology set forth in the A.M.A., Guides. Dr. Katz explained that Dr. Leatherwood did not 

describe the methodology of determining his net adjustment in assessing spinal nerve and right 

ankle impairment. 

On August 25, 2016 OWCP forwarded a copy of Dr. Katz’s report to Dr. Leatherwood for 

review and comment. It asked that he provide further explanation of his impairment assessment, 

in accordance with the procedures found in the A.M.A., Guides. 
6

In a September 8, 2016 report, Dr. Leatherwood advised that for the right foot and ankle, 

the process seen in the metatarsal joint (fracture dislocation) was the single diagnostic key factor. 

He utilized this diagnosis under Table 16-2 and reiterated that appellant had a class 2, 16 percent 

impairment of the right foot and ankle. With regard to lower extremity impairments due to the 

lumbar spine injury, Dr. Leatherwood indicated that, when he performed his second examination, 

it was his impression that EMG/NCV study date was to be taken into consideration and used for 

the evaluation. He advised that, upon further review, it appeared that EMG data did not need to 

be used in calculating impairment if it was at odds with clinical examination as in appellant’s case. 

Dr. Leatherwood found that, based on the fact that appellant had clinically intact neurological 

examination on both of his evaluations, he had no impairment due to the lumbar spine injury. 

OWCP referred Dr. Leatherwood’s September 8, 2016 report to Dr. Katz for review. In a 

September 21, 2016 report, Dr. Katz noted the accepted conditions and analyzed

Dr. Leatherwood’s April 21, 2015, July 19, and September 18, 2016 reports. OWCP’s medical 

adviser opined that Dr. Leatherwood properly reviewed and documented the pertinent history and 

diagnostic reports and performed a focused physical examination in which he addressed the 

accepted conditions and correctly applied the procedures set forth by FECA and OWCP and the 

methodology set forth in the A.M.A., Guides in rendering his medical opinion regarding a 

compensable impairment. Dr. Katz opined that Dr. Leatherwood correctly referenced Table 16-

23 for a stand-alone range of motion rating for the right knee as it most accurately assesses the 

degree of knee impairment. He agreed with Dr. Leatherwood’s conclusion that appellant had 24 

percent right lower extremity impairment with maximum medical improvement reached on 

July 19, 2016, the date of Dr. Leatherwood’s most recent referee examination. 

By decision dated September 27, 2016, OWCP found that the weight of the medical 

evidence rested with the opinion of Dr. Leatherwood and denied appellant’s claim for an additional 

right lower extremity schedule award.

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

representative on October 4, 2016. By decision dated December 2, 2016, the hearing 

representative noted that the case must be remanded to OWCP. She found that further medical 

development was required in order to address the deficiencies outlined in the March 30, 2016 

decision of an OWCP hearing representative. The hearing representative reviewed

Dr. Leatherwood’s reports and found that he failed to address exactly how he arrived at his 

calculation under Table 16-2 of the A.M.A., Guides, noting that he made no reference to applicable 

grade modifiers. She further found that, regarding right knee impairment, Dr. Leatherwood also 

did not explain how he arrived at the figures provided for meniscus tear and patellar 

chondromalacia, again not addressing the class of impairment or applicable grade modifiers. With 

regard to the lumbar spine, the hearing representative found that Dr. Leatherwood had failed to 

provide a rationalized medical explanation to support that the findings on EMG/NCV studies were 

invalid and unreliable. She remanded the case to OWCP to obtain clarification from

Dr. Leatherwood regarding these deficiencies in his reports. Dr. Leatherwood was also to address

findings from Semmes-Weinstein monofilament testing which documented sensory deficits, the 

motor deficits documented in the record, and provide an impairment rating in which he referenced 

the A.M.A., Guides and July/August 2009 The Guides Newsletter for rating extremity impairment 

due to spinal nerve root deficits. 
7

In a January 3, 2017 letter, OWCP asked that Dr. Leatherwood address the issues 

enumerated in the December 2, 2016 hearing representative decision. 

By report dated January 26, 2017, Dr. Leatherwood reiterated that the diagnosis of 

metatarsal fracture-dislocation was the best method to address appellant’s foot and ankle issues 

which, he opined yielded a severity grade of C for 16 percent right lower extremity impairment 

under Table 16-2. Regarding the right knee, he explained that he followed instructions in the 

A.M.A., Guides indicating that the preferred method of determining impairment was diagnosisbased, and that only the most severe diagnosis is to be used. Dr. Leatherwood concluded that for 

a diagnosis of patellofemoral arthritis, under Table 16-3, Knee Regional Grid, appellant had a 

class 1 grade E impairment which yielded five percent right knee impairment. With regard to 

appellant’s nerve root deficits, he summarized his reports and maintained that EMG studies were 

not object in the same sense as an MRI scan or x-ray. Dr. Leatherwood noted that the NCV portion 

should be objective in nature, but that the EMG was subject to interpretation by the examiner, and 

that a patient could be well recovered from a given condition and the EMG would continue to 

show the condition. He reiterated his opinion that clinical examination should take precedence 

over EMG findings. Dr. Leatherwood, however, indicated that, if he was required to use the EMG 

evidence, he would again find four percent deficits as he had previously reported. He also 

maintained that Semmes-Weinstein testing was also subjective. Dr. Leatherwood utilized the 

Combined Values Chart, and combined the 16 percent foot/ankle impairment with 5 percent knee 

impairment for a total 20 percent right lower extremity impairment, noting that, if radiculopathy 

was required, combining 4 percent impairment with 20 percent, yielded a total of 23 percent 

permanent impairment. He concluded that he had tried his best to be both fair and impartial in his 

evaluation. Dr. Leatherwood indicated that, if his explanations were insufficient, he advised 

choosing another referee physician.

On March 28, 2017 Dr. Katz, OWCP’s medical adviser, reviewed Dr. Leatherwood’s 

January 26, 2017 report. He indicated that this report amended, restated, and superseded his 

September 21, 2016 report. Dr. Katz noted his review of Dr. Leatherwood’s and his prior reports, 

and that he had not been asked to review Dr. Leatherwood’s January 26, 2017 report. He noted 

that Dr. Leatherwood explained that electrodiagnostic tests should not take precedence over 

objective clinical examination, and that he did not find objective evidence on spinal nerve physical 

examination of the lower extremities to qualify for an impairment. Dr. Katz further expressed the 

opinion that electrodiagnostic interpretation could be subjective. He further noted

Dr. Leatherwood’s opinion that regarding appellant’s right knee diagnosis-based impairment of 5 

percent. Dr. Katz found a total 20 right lower extremity impairment for which appellant had 

received a schedule award. 

By decision dated April 4, 2017, OWCP found the weight of the medical evidence rested 

with the opinion of Dr. Leatherwood and denied appellant’s claim for an additional right lower 

extremity schedule award. 

On April 11, 2017 appellant, through counsel, timely requested a hearing before an OWCP 

hearing representative. During the hearing, counsel maintained that Dr. Leatherwood did not 

address the deficiencies outlined in the December 2, 2016 hearing representative’s decision. He

noted that OWCP had made three attempts to have Dr. Leatherwood clarify his opinion, and he 
8

had not done so. Counsel asserted that the case should be remanded for OWCP to refer appellant 

to a different referee physician. 

By decision dated August 23, 2017, an OWCP hearing representative affirmed the April 4, 

2017 decision, finding that the weight of the medical evidence rested with the referee opinion of

Dr. Leatherwood who explained his impairment rating and provided proper rationale. He noted 

that OWCP’s medical adviser concurred with Dr. Leatherwood’s opinion. The hearing 

representative therefore found that appellant had not established greater permanent impairment of 

his right lower extremity than that previously awarded.

LEGAL PRECEDENT

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

impairment of a scheduled member or function of the body as a result of an employment injury.10 

The schedule award provisions of FECA11 and its implementing federal regulations,12 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.13 For decisions issued 

after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.14

The sixth edition of the A.M.A., Guides15 provides a diagnosis-based method of evaluation 

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

and Health (ICF).16 Under the sixth edition, for lower extremity impairments the evaluator 

identifies the impairment Class of Diagnosis (CDX) condition, which is then adjusted by grade 

modifiers based on Functional History (GMFH), Physical Examination (GMPE), and Clinical 

 

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

11 5 U.S.C. § 8107.

12 20 C.F.R. § 10.404.

13 Id. at § 10.404(a).

14 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010); 

id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (February 2013).

15 Supra note 9.

16 Supra note 9, section 1.3, “The International Classification of Functioning, Disability and Health (ICF): A 

Contemporary Model of Disablement.”
9

Studies (GMCS).17 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX).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 

section 3.700 of its procedures, which memorializes proposed tables outlined in a 

July/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

Section 8123(a) of FECA provides that, if there is disagreement between the physician 

making the examination for the United States and the physician of the employee, the Secretary 

shall appoint a third physician who shall make an examination.25 The implementing regulation 

states that, if a conflict exists between the medical opinion of the employee’s physician and the 

medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall 

appoint a third physician to make an examination. This is called a referee examination, and OWCP 

will select a physician who is qualified in the appropriate specialty and who has no prior connection 

with the case.26 

 

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

18 Id. at 521.

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

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

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

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

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

23 A.M.A., Guides 533.

24 Id. at 425.

25 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

26 20 C.F.R. § 10.321.
10

OWCP 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, with the medical adviser providing 

rationale for the percentage of impairment specified.27 If a case has been referred for a referee 

evaluation to resolve the issue of permanent impairment, it is necessary to route the file to a new 

OWCP medical adviser to review the calculations to ensure that the referee physician appropriately 

used the A.M.A., Guides. Where a referee examination is arranged to resolve a conflict created 

between a claimant’s physician and the medical adviser with respect to a schedule award issue, the 

same OWCP medical adviser should not review the referee’s report for proper application of the 

A.M.A., Guides.

28

ANALYSIS

The Board finds that this case is not in posture for decision as a conflict in medical opinion 

evidence remains regarding the degree of appellant’s right lower extremity impairment.

Under the master file, OWCP File No. xxxxxx373, the accepted conditions are right lower 

extremity polyneuropathy in diabetes, flatfoot, arthropathies associated with neurological 

disorders, tear of medial meniscus of knee, current, and chondromalacia patellae. OWCP accepted 

lumbar sprain and lumbar radiculopathy. On January 16, 2007 it granted appellant a schedule 

award for four percent permanent impairment of the right lower extremity. On February 19, 2010 

OWCP granted appellant a schedule award for an additional nine percent permanent impairment 

of the right lower extremity. On November 10, 2010 it granted appellant an additional 7 percent 

impairment of the right lower extremity, and on September 8, 2015 he was awarded an additional 

4 percent right lower extremity impairment, for a total 24 percent permanent impairment of the 

right lower extremity.

OWCP referred appellant to Dr. Leatherwood for an impartial evaluation. 

Dr. Leatherwood examined appellant on two occasions, April 21, 2015 and July 19, 2016. He also 

furnished supplementary reports on September 8, 2016 and January 26, 2017. In each of these 

reports, Dr. Leatherwood discussed his findings and conclusions regarding appellant’s right lower 

extremity impairment and indicated that he had rated appellant in accordance with the sixth edition 

of the A.M.A., Guides. 

Section 16.2 of the A.M.A., Guides instructs the examiner to perform history and 

examination and determine if the individual is at maximum medical improvement, establish the 

appropriate diagnosis for each part of the lower limb to be rated, use the regional grid in the 

corresponding region to determine the associated class, and use the adjustment grid and the grade 

modifiers to determine what grade of associated impairment should be chosen within the class 

defined by the regional grid, use the regional grid to identify the appropriate impairment rating 

 

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

Chapter 2.808.6(f) (March 2017).

28 A.M.A., Guides 449.
11

value for the impairment class, modified by the adjustments as calculated (Net Adjustment 

Formula), and combine lower extremity percentages using the Combined Values Chart.29

Dr. Leatherwood, however, did not address application of the grade modifiers or the net 

adjustment formula in his analysis under Chapter 16 of the A.M.A., Guides. Moreover, in his 

application of the rating process for spinal nerve impairment, found in Proposed Table 2,

Dr. Leatherwood did not address grade modifiers, as explained on page 3 of the July/August 2009 

The Guides Newsletter.

As Dr. Leatherwood’s opinion regarding appellant’s right lower extremity permanent 

impairment remains insufficient, a conflict remains. The case must, therefore, be remanded to 

OWCP for selection of a new impartial medical specialist for resolution of the outstanding conflict 

in medical evidence.30 After such further development deemed necessary, OWCP shall issue a 

de novo decision regarding appellant’s right lower extremity impairment.

CONCLUSION

The Board finds this case not in posture for decision.

 

29 Id. at 499.

30 See G.W., Docket No. 17-0957 (issued June 19, 2017).
12

ORDER

IT IS HEREBY ORDERED THAT the April 4 and August 23, 2017 decisions of the 

Office of Workers’ Compensation Programs are set aside, and the case is remanded to OWCP for 

proceedings consistent with this opinion of the Board.

Issued: August 13, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board