United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.J., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER -- MIAMI, Miami, FL, Employer 

__________________________________________ 

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Docket No. 16-1162 

Issued: February 8, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 16, 2016 appellant filed a timely appeal from a March 15, 2016 merit decision 

and an April 13, 2016 nonmerit 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. 

ISSUES 

The issues are: (1) whether appellant has established more than seven percent permanent 

impairment to her left lower extremity, for which she has received a schedule award; and 

(2) whether OWCP properly denied her request for reconsideration of the merits of the claim 

pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On November 24, 1992 appellant, then a 36-year-old nursing assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on that day she injured her left toe, leg and foot due to a 

crushing injury from a bed rail. OWCP accepted the claim for a contusion of left toe, contusion 

of foot, lesion of plantar nerve, left foot plantar fibromatosis, crushing injury of left foot, bunion, 

left foot and post-traumatic osteoarthritis, ankle and left foot and authorized surgery, which 

appellant underwent in November 1993 and June 1995. On December 10, 1997 OWCP found 

that the position of alternative duty nursing assistant fairly and reasonably represented her wageearning capacity.2

 Appellant has not worked since August 4, 2000. 

On July 17, 2015 appellant filed a Form CA-7 claim for compensation requesting 

schedule award compensation benefits. By decision dated November 10, 2015, OWCP granted 

two percent permanent impairment to her left lower extremity. The award ran 5.76 weeks from 

September 29 to November 8, 2015. The schedule award was based on crush injury left foot 

with nondisplaced orthochondral fracture first metatarsophalangeal joint (MPJ) with no pain. 

In a January 8, 2016 report, Dr. Tania C. Turbay, DPM, a podiatrist, documented 

appellant’s residual symptoms. Examination of the left foot demonstrated a hallux valgus 

deformity with tenderness to palpation, diminished sensation and pain with range of motion. 

Appellant was noted to walk with an antalgic gait. Dr. Turbay opined that appellant had 20 

percent impairment rating based on Florida Compensation Guide for Impairment Ratings. This 

was due to appellant’s chronicity of pain and neuropathy and the impairment on ambulation due 

to severe deformity of the toes of the right foot. Dr. Turbay indicated that appellant suffered 

from reflex sympathetic dystrophy (RSD) and post-traumatic arthritic changes from the crush 

injury to the foot. She noted that appellant’s previous impairment only included pain to the foot. 

On January 27, 2016 an OWCP medical adviser reviewed the medical evidence of file, 

noting that a statement of accepted facts was not contained in the case file. He indicated that 

appellant was status postcontusion and straining injury left foot/ankle and hallux valgus (bunion) 

left foot. Under Table 16-2, page 501 of the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment3

 (hereinafter A.M.A., Guides), the medical 

adviser opined that appellant had seven percent lower extremity impairment for residual 

problems status post contusion and straining injury left foot and ankle. He noted that this 

equated to a class 1 grade E. The medical adviser indicated that the date of maximum medical 

improvement was January 21, 2016, when appellant was evaluated by Dr. Turbay. 

On March 1, 2016 OWCP received appellant’s request for reconsideration. She 

requested reconsideration based on Dr. Turbay’s finding that her impairment percentage had 

increased. 

 2

 By decision dated July 9, 2015, OWCP denied modification of its December 10, 1997 loss of wage-earning 

capacity decision. 

3

 A.M.A., Guides (6th ed. 2008). 
3

By decision dated March 15, 2016, OWCP awarded appellant an additional five percent 

impairment for a total left lower extremity impairment of seven percent. The award ran 14.4 

weeks from November 9, 2015 to February 17, 2016. The date of maximum medical 

improvement was determined as January 21, 2016. The weight of the medical evidence was 

given to the medical adviser, who applied the A.M.A., Guides to Dr. Turbay’s examination 

findings. . 

On March 29, 2016 OWCP received appellant’s March 29, 2016 request for 

reconsideration. She again requested reconsideration based on a finding by Dr. Turbay that her 

schedule award percentage had increased. 

In a November 30, 2015 report, Dr. Turbay noted appellant had chronic pain and that 

maximum medical improvement was reached on November 30, 2015. He found that a diagnosis 

of displaced fracture of first metatarsal bone, right foot and displaced fracture of first metatarsal 

bone, left foot, would be two percent. 

By decision dated April 13, 2016, OWCP denied appellant’s request for reconsideration 

as the evidence submitted was either irrelevant or immaterial to the issue at hand. 

LEGAL PRECEDENT -- ISSUE 1 

The schedule award provision of FECA,4 and its implementing federal regulations,5 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.6 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to rate permanent impairment.7

 

The A.M.A., Guides provides a diagnosis-based method for evaluating permanent 

impairment.8

 For lower extremity impairments, the evaluator identifies the impairment Class of 

Diagnosis (CDX) which is then adjusted by grade modifiers for Functional History (GMFH), 

Physical Examination (GMPE), and Clinical Studies (GMCS). The Net Adjustment Formula is 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9 Under Chapter 2.3 of the A.M.A., 

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404. 

6 Id. at § 10.404(a). 

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

Chapter 2.808.5a (February 2013); Part 3 -- Medical, Schedule Award, Chapter 3.700, Exhibit 1 (January 2010). 

8

 A.M.A., Guides 493-531. 

9 Id. at 515-22. 
4

Guides, evaluators are directed to provide reasons for their impairment rating choices, including 

choices of diagnoses from regional grids and calculations of modifier scores.10

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

should be routed to the medical adviser for an opinion concerning the percentage of impairment 

using the A.M.A., Guides.

11 In some instances, the medical adviser’s opinion can constitute the 

weight of the medical evidence. This occurs in schedule award cases where an opinion on the 

percentage of permanent impairment and a description of physical findings is on file from an 

examining physician, but the percentage estimate by this physician is not based on the A.M.A., 

Guides. In this instance, a detailed opinion by OWCP’s medical adviser which gives a 

percentage based on reported findings and the A.M.A., Guides may constitute the weight of the 

medical evidence.12

ANALYSIS -- ISSUE 1 

The Board finds that this case is not in posture for decision. OWCP’s medical adviser 

noted that he had not been provided a statement of accepted facts. He based his report on 

Dr. Turbay’s limited findings. 

Dr. Turbay’s January 21, 2016 report is of diminished probative value. She opined in her 

January 21, 2016 report that appellant had 20 percent impairment based on Florida 

Compensation Guide for Impairment Ratings. OWCP, however, uses the sixth edition of the 

A.M.A., Guides to calculate schedule awards.13 Dr. Turbay’s report was not based on the 

A.M.A., Guides. A medical opinion not based on the appropriate edition of the A.M.A., Guides 

is of diminished probative value in determining the extent of permanent impairment.14 

OWCP’s medical adviser reviewed Dr. Turbay’s January 8, 2016 report and indicated 

that the date of maximum medical improvement was January 21, 2016. He noted Dr. Turbay’s 

examination findings of the left foot included a hallux valgus deformity with tenderness to 

palpation, diminished sensation and pain with range of motion, and that appellant walked with an 

antalgic gait. Under Table 16-2, page 501 of A.M.A., Guides, the medical adviser found 

appellant had seven percent left lower extremity impairment for residual problems status post 

contusion and straining injury to left foot and ankle or class 1, severity grade E. However, the 

medical adviser failed to adequately explain how his determination was reached in accordance 

with the relevant standards of the A.M.A., Guides.

15 It is unclear what diagnostic criteria the 

 10 Id. at 23-28. 

11 Supra note 7 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f) 

(February 2013); see also L.R., Docket No. 14-674 (issued August 13, 2014); D.H., Docket No. 12-1857 (issued 

February 26, 2013). 

12 See supra note 7 at Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.8(j) 

(September 2010). 

13 See supra note 7. 

14 See F.T., Docket No. 14-553 (issued August 11, 2014); Fritz A. Klein, 53 ECAB 642 (2002). 

15 See Tonya R. Bell, 43 ECAB 845, 849 (1992). 
5

medical adviser used or how he arrived at a severity grade of E. Under Chapter 2.3 of the 

A.M.A., Guides, evaluators are directed to provide reasons for their impairment rating choices, 

including choices of diagnoses from regional grids and calculations of modifier scores.16 It is 

noted that the original schedule award was based on crush injury left foot with nondisplaced 

ortochondral fracture first MPJ with no pain. The medical adviser also has not explained why a 

different diagnostic class was used. Therefore the Board finds that he did not adequately follow 

the A.M.A., Guides and his report is of diminished probative value where the A.M.A., Guides

were not properly followed.17 

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested 

arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP 

shares responsibility in the development of the evidence to see that justice is done.18 The Board 

finds that the case is not in posture for decision regarding the additional award. 

On remand, OWCP should prepare a statement of accepted facts and forward it to 

OWCP’s medical adviser for an updated report. After this and such other development as it 

deems necessary, OWCP should issue a de novo decision. 

CONCLUSION 

The Board finds that this case is not in posture for decision on the extent of permanent 

impairment to appellant’s left lower extremity.19 

 16 See supra note 10. 

17 See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not 

explaining how the A.M.A., Guides are utilized is of little probative value). 

18 Phillip L. Barnes, 55 ECAB 426 (2004). 

19 In light of the disposition of this case, issue 2 is hereby rendered moot. 
6

ORDER 

IT IS HEREBY ORDERED THAT the March 15 and April 13, 2016 decisions of the 

Office of Workers’ Compensation Programs are set aside and the case remanded for further 

proceedings consistent with this decision. 

Issued: February 8, 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