United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.E., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Saint Louis, MO, Employer

__________________________________________

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Docket No. 17-0961

Issued: March 14, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 31, 2017 appellant filed a timely appeal from a March 1, 2017 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 more than six percent permanent impairment of his

right lower extremity, for which he previously received a schedule award. 

FACTUAL HISTORY

On February 14, 2012 appellant, then a 56-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on February 13, 2012 he sustained a right foot/ankle injury 

while he was walking his mail route and started to feel pain in his right foot. He stopped work

 

1 5 U.S.C. § 8101 et seq.
2

on February 14, 2012 and sought medical treatment on that day. OWCP accepted the claim for 

enthesopathy of the right ankle/tarsus, right Achilles tendinitis, rupture of other tendon right 

foot/ankle, right ankle sprain/strain, and right contracture of tendon sheath.2 

Appellant sought treatment with Dr. Ryan Pitts, a Board-certified orthopedic surgeon. 

On July 11, 2012 Dr. Pitts performed a right ankle arthroscopy, limited arthroscopic 

debridement, open right ankle peroneal brevis tenodesis, and peroneal longus and brevis 

tenolysis.

In a May 20, 2013 clinical note, Dr. Pitts provided physical examination findings of right 

ankle swelling. He diagnosed right ankle peroneal tear -- high grade partial debridement and 

tenodesis from a February 13, 2012 work-related injury. 

On August 8, 2013 appellant filed a claim for a schedule award (Form CA-7). 

OWCP routed a statement of accepted facts and the case file to Dr. Daniel Zimmerman, 

Board-certified in internal medicine serving as an OWCP district medical adviser (DMA), for 

review and a determination on whether appellant sustained permanent impairment of the right 

lower extremity and date of maximum medical improvement (MMI). 

In an August 27, 2013 report, Dr. Zimmerman reported that per appellant’s May 20, 2013 

report from Dr. Pitts, he had not yet reached MMI. 

By letter dated September 16, 2013, OWCP requested appellant submit an impairment 

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

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

3

 It afforded him 30 days 

to submit the requested impairment evaluation. 

In a September 27, 2013 medical report, Dr. Pitts reported that appellant’s right ankle 

revealed good strength and mild loss of motion when compared to the left side. He opined that 

appellant had reached MMI. 

In support of his schedule award claim, appellant submitted an August 13, 2014 report

pertaining to the right lower extremity from Dr. John W. Ellis, Board-certified in family 

 

2 The Board notes that appellant has another traumatic injury claim under OWCP subsidiary File No. xxxxxx246,

which was combined with this claim, OWCP File No. xxxxxx728. Appellant has another claim, OWCP File No. 

xxxxxx359 which has also been combined and serves as the master file. On January 28, 2010 he sustained a 

traumatic injury under OWCP File No. xxxxxx359. On March 22, 2010 OWCP accepted the claim for rotator cuff 

strain of right shoulder, right shoulder bursitis, and right shoulder tendinitis. Appellant returned to full-duty work on 

June 17, 2010. By decision dated March 24, 2011, he received a schedule award for six percent permanent 

impairment of the right upper extremity. On December 14, 2011 appellant sustained a traumatic injury under 

OWCP File No. xxxxxx246. On January 31, 2012 OWCP accepted the claim for right rotator cuff sprain, right 

superior glenoid labrum lesion, lateral tear of the right shoulder, and a partial right rotator cuff tear. By decision 

dated March 1, 2016, it issued a schedule award for nine percent permanent impairment of the upper right extremity. 

Appellant was awarded 15 percent less the 6 percent previously paid under OWCP File No. xxxxxx359, resulting in 

an award for 9 percent permanent impairment of the upper right extremity.

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

medicine.4 In his report, Dr. Ellis opined that appellant reached MMI on August 13, 2014. He 

determined that appellant would be entitled to a schedule award for 13 percent permanent 

impairment of the right lower extremity using the diagnosis-based impairment (DBI) method for 

a peroneal and other tendon tear, class 1 for a mild problem.

5

 Dr. Ellis assigned a grade modifier 

of 2 for functional history, a grade modifier of 2 for physical examination, and no grade modifier 

was assigned for clinical studies. However, he determined that the range of motion (ROM) 

method more accurately reflected appellant’s lower extremity impairment. Dr. Ellis noted 2

percent impairment for decreased hind foot ROM,

6

and 15 percent impairment of decreased 

ankle ROM,

7

resulting in a total 17 percent permanent impairment of the right lower extremity. 

He explained that the decreased ROM method more accurately reflected appellant’s impairment 

as his injury entailed more than just the peroneal tendon, having impairment of tendons, arthritis, 

and tendinitis in the right foot and ankle.

By letter dated September 3, 2014, OWCP requested that appellant provide further 

medical evidence from his treating physician in support of his schedule award claim. It 

specifically requested that he provide a reasoned medical opinion containing rationale for 

calculation of permanent impairment with references to the applicable criteria and tables in the 

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

By letter dated September 22, 2014, Dr. Ellis informed OWCP that his prior August 13, 

2014 report established appellant’s claim for a schedule award and listed the diagnoses utilized 

along with the tables within the A.M.A., Guides.

OWCP routed the case file and referred appellant to Dr. Richard T. Katz, Board-certified 

in physical medicine and rehabilitation, for a second opinion examination pertaining to 

permanent impairment of both the right upper and lower extremities.

8

 In his report of 

November 16, 2015, as it relates to lower extremity permanent impairment, Dr. Katz 

documented a history of injury, summarized prior medical records, reviewed diagnostic testing, 

and provided physical examination findings. He explained that peroneal tendinitis was rated at 

page 501 of the A.M.A., Guides ranging from three to seven percent.9 Dr. Katz determined that 

based on Table 16-2 (Mild Motion Deficits), this resulted in class 1 placement at a default value 

of five percent. He assigned a grade modifier of 1 for physical examination and a grade modifier 

of 2 based on the lower extremity questionnaire. Dr. Katz determined that appellant’s final 

rating resulted in grade D, warranting movement one place to the right of the default value

resulting in six percent permanent impairment of the right lower extremity. 

 

4 The Board notes that appellant also submitted another August 13, 2014 report from Dr. Ellis pertaining to the 

right upper extremity, but that report is irrelevant to the present claim.

5 Supra note 3 at 501, Table 16-2.

6

Id. at 549, Table 16-20.

7

Id. at Table 16-22.

8 The Board notes that appellant’s claim for right upper extremity impairment is not before the Board on appeal. 

As such, the Board will not discuss findings made pertaining to the right upper extremity.

9 Supra note 5.
4

On January 6, 2016 OWCP routed the case file to Dr. David H. Garelick, a Boardcertified orthopedic surgeon, serving as OWCP’s DMA, for review and a determination on 

whether appellant sustained permanent impairment of the right upper extremity and permanent 

impairment of the right lower extremity.

10

 

In a January 16, 2016 report, Dr. Garelick agreed with Dr. Katz’ findings pertaining to 

the right foot and opined that appellant sustained six percent permanent impairment of the right 

lower extremity. He further determined that appellant reached MMI for his lower extremity 

condition on September 27, 2013. 

By decision dated March 1, 2016, OWCP granted appellant a schedule award for six 

percent permanent impairment of the right lower extremity. It found that the weight of the 

medical evidence rested with Dr. Katz and Dr. Garelick serving as OWCP’s DMA. The date of 

MMI was noted as September 27, 2013. The award covered a period of 17.28 weeks from 

September 27, 2013 to January 25, 2014. 

On March 15, 2016 appellant requested an oral hearing before an OWCP hearing 

representative. 

By decision dated September 23, 2016, an OWCP hearing representative set aside the 

March 1, 2016 schedule award decision and remanded the case for further development. The 

hearing representative explained that OWCP referred appellant to Dr. Katz for a second opinion 

evaluation and that he had opined that appellant sustained six percent permanent impairment of 

the right lower extremity, which was confirmed by Dr. Garelick serving as OWCP’s DMA. 

However, neither Dr. Katz nor Dr. Garelick discussed Dr. Ellis’ August 13, 2014 impairment 

rating finding 17 percent right lower extremity permanent impairment based on the ROM

method. The hearing representative remanded the case for Dr. Katz to review Dr. Ellis’

August 13, 2014 report, identify if there were any points of disagreement, and to provide a 

rationalized explanation pertaining to appellant’s right lower extremity impairment rating. It 

noted that the sixth edition provided that the DBI was the primary method of evaluation. 

However, ROM impairments could be used as a stand-alone rating when other grids referred the 

evaluator to this method or when no other diagnosis-based sections were applicable for 

impairment rating of a condition.11 As such, if Dr. Katz determined that the DBI method should 

be utilized as opposed to the ROM method as indicated by Dr. Ellis, then he should provide a 

rationalized explanation supporting this contention. Following receipt of his supplemental 

report, the case file would be forwarded to an OWCP DMA for review. The DMA should also 

be advised that while the DBI method was preferred to the ROM method, both approaches were

permissible under the A.M.A., Guides. Following any further development as deemed 

necessary, OWCP was instructed to issue a de novo decision on the claim. 

On November 2, 2016 OWCP routed the report of Dr. Ellis to Dr. Katz for review and 

determination on his right lower extremity impairment rating, whether the ROM or DBI

methodology should be used, and the appropriate date of MMI. It instructed Dr. Katz to identify 

 

10 See supra note 9.

11 Supra note 3 at 387 and 461.
5

any points of disagreement. OWCP further noted that if he chose to utilize the DBI method to 

calculate the right lower extremity impairment, as opposed to the ROM method, he needed to 

provide a rationalized explanation to support his rating, specifically addressing why Dr. Ellis’

chosen ROM-based impairment method was inappropriate. 

In a December 14, 2016 supplemental report, Dr. Katz reported that the rating he 

provided pertained to tendinitis, which differed from that of Dr. Ellis who rated appellant for a 

tendon tear. He noted that, while he did not have the original records, he believed that Dr. Ellis 

misrepresented the word tear. Dr. Katz explained that a sprain represented a microscopic tear of 

the tendon, but not a gross tear. Dr. Ellis, however, portrayed the ankle problem as a gross tear 

of a tendon. Dr. Katz did not believe that, such a tear took place and rather, appellant had 

tendinitis which he had previously correctly rated at six percent permanent impairment of the 

right lower extremity. 

On January 6, 2017 OWCP routed the case file to Dr. Garelick, serving as OWCP’s

DMA, for review of Dr. Katz’ reports and a determination on whether appellant sustained a 

permanent impairment of the right lower extremity, date of MMI, and whether the DBI or ROM 

methodology should have been used to rate the right lower extremity impairment. It requested 

that he provide a clear explanation as to why the method chosen was used in lieu of another 

allowable method (e.g., DBI vs. ROM).

In a January 10, 2017 report, Dr. Garelick reported that there was no change with respect 

to the right lower extremity impairment rating. The DMA concurred with Dr. Katz’ findings 

pertaining to the September 27, 2013 date of MMI and six percent permanent impairment of the 

right lower extremity. 

By decision dated March 1, 2017, OWCP found that the medical evidence failed to 

establish that appellant was entitled to more than six percent permanent impairment of the right 

lower extremity previously awarded. 

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.12 However, it 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 

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

appropriate standard for evaluating schedule losses.13

 

12 5 U.S.C. § 8107; 20 C.F.R. § 10.404.

13 K.H., Docket No. 09-0341 (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).
6

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition 

of the A.M.A., Guides (2009).14 The Board has approved the use by OWCP of the A.M.A., 

Guides for the purpose of determining the percentage loss of use of a member of the body for 

schedule award purposes.15

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 class for the diagnosed 

condition should be Class of Diagnosis (CDX), which is then adjusted by grade modifiers based 

on Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).16 

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

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

of diagnoses from regional grids and calculations of modifier scores.18

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, with the medical adviser 

providing rationale for the percentage of impairment specified.19

ANALYSIS

OWCP accepted appellant’s claim for enthesopathy of the right ankle/tarsus, right 

Achilles tendinitis, rupture of other tendon right foot/ankle, right ankle sprain/strain, and right 

contracture of tendon sheath. The issue is whether appellant has more than six percent 

permanent impairment of the right lower extremity, for which he previously received a schedule 

award. 

The Board finds this case is not in posture for decision.

In support of his schedule award claim, appellant submitted an August 13, 2014 report

from Dr. Ellis who calculated 13 percent permanent impairment of the right lower extremity 

utilizing the DBI method for the diagnosis of peroneal and other tendon tear. However, Dr. Ellis 

determined that the ROM method more accurately reflected appellant’s impairment, finding 17 

percent permanent impairment of the right lower extremity (2 percent impairment for decreased 

hind foot ROM and 15 percent impairment of decreased ankle ROM). He explained that the 

 

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

(January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6a 

(February 2013). 

15 Isidoro Rivera, 12 ECAB 348 (1961).

16 Supra note 3 at 493-531. 

17 Id. at 521. 

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

19 See supra note 14 at Chapter 2.808.6(f) (March 2017).
7

decreased ROM method more accurately reflected appellant’s impairment as he had more than 

just the peroneal tendon with impairment of a few tendons, arthritis, and tendinitis in the right 

foot and ankle.

On November 16, 2015 OWCP referred appellant to Dr. Katz for a second opinion 

evaluation pertaining to the right lower extremity impairment. Dr. Katz utilized the DBI 

diagnosis of peroneal tendinitis to calculate six percent permanent impairment of the right lower 

extremity. Dr. Garelick, serving as OWCP’s DMA, concurred with Dr. Katz’ impairment rating. 

On September 23, 2016 an OWCP hearing representative set aside the March 1, 2016 

schedule award decision and remanded the case for further development. She ordered that

Dr. Katz and the DMA review Dr. Ellis’ August 13, 2014 impairment rating and address whether 

the DBI method should be utilized as opposed to the ROM method as indicated by Dr. Ellis.

However, the Board has previously held that Chapter 16 of the sixth edition of the 

A.M.A., Guides, pertaining to the lower extremities, provides that DBI is the primary method of 

calculation for the lower limb. Furthermore, most impairments are based on the DBI method

where impairment class is determined by the diagnosis and specific criteria as adjusted by the 

grade modifiers for functional history, physical examination, and clinical studies. It further 

provides that alternative approaches are also provided for calculating impairment for peripheral 

nerve deficits, complex regional pain syndrome, amputation, and ROM. ROM is primarily used 

as a physical examination adjustment factor.20 The A.M.A., Guides also explains that some of 

the DBI grids refer to the ROM section when that is the most appropriate mechanism for grading 

the impairment. This section is to be used as a stand-alone rating when other grids refer to this 

section or no other DBI sections of the chapter are applicable for rating a condition.21

Following remand, in his December 14, 2016 addendum, Dr. Katz argued that his right 

lower extremity rating remained at six percent permanent impairment. The Board finds that his 

supplemental report is insufficient to form the basis of appellant’s schedule award claim.22 

Dr. Katz explained that his impairment rating utilized the DBI of tendinitis which differed with 

that of Dr. Ellis who rated appellant for tendon tear. The Board finds that the opinion of

Dr. Katz is speculative as he noted that he did not have the original records, but “believed” that

Dr. Ellis misrepresented the word tear. Dr. Katz argued that the sprain represented a microscopic 

tear of the tendon and not a gross tear as found by Dr. Ellis. Dr. Garelick, serving as OWCP’s

DMA, simply reported that there was no change in the right lower extremity impairment rating 

without further explanation. As such, these reports cannot be afforded the weight of the medical 

opinion evidence and are insufficient to form the basis for a schedule award.23 

While the hearing representative ordered the supplemental reports to contain a reasoned 

opinion as to the use of ROM vs. DBI, the citation was made to the upper extremity impairment 

 

20 See M.M., Docket No. 16-1759 (issued April 24, 2017); A.M.A., Guides 494-531.

21 Id.; see also D.F., Docket No. 15-0664 (issued January 8, 2016).

22 L.R., Docket No. 14-0674 (issued August 13. 2014).

23 S.S., Docket No. 15-1736 (issued August 4, 2016). 
8

chapter which is, obviously, inapplicable to the present lower extremity impairment rating. The 

Board therefore finds that this remand issue is not relevant in the present claim.

Once OWCP undertakes development of the record it must procure medical evidence that 

will resolve the relevant issues in the case.24 It began to develop the evidence by seeking an 

opinion from Dr. Katz, serving as the second opinion physician, and Dr. Garelick, serving as 

OWCP’s DMA, yet failed to obtain a fully rationalized report pertaining to appellant’s right 

lower extremity impairment rating.25 It is unclear if appellant’s impairment rating should be 

calculated utilizing peroneal and other tendon tear as noted by Dr. Ellis, or tendinitis as 

stipulated by Dr. Katz. As the Board is unable to determine from the current record whether

Dr. Ellis or Dr. Katz appropriately applied the A.M.A., Guides in determining appellant’s 

permanent impairment for schedule award purposes, this case must be remanded for further 

development and appropriate impairment rating under the A.M.A., Guides.

26

The Board will remand the case to OWCP for further medical development.27 OWCP 

should refer appellant to another second opinion physician in accordance with its procedures to 

properly determine the impairment to his right lower extremity based on a current examination, 

the accepted employment injuries, and utilizing the proper tables and figures of the A.M.A., 

Guides. After such further development as deemed necessary, OWCP shall issue a de novo

decision on the extent of impairment to appellant’s right lower extremity.

CONCLUSION

The Board finds that this case is not in posture for a decision.

 

24 Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, claiming as executrix of the estate of 

Lionel F. Richard, 53 ECAB 430 (2002); Dorothy L. Sidwell, 36 ECAB 699 (1985); William J. Cantrell, 34 ECAB 

1233 (1993). 

25 C.B., Docket No. 11-1937 (issued April 6, 2012).

26 See C.S., Docket No. 14-1085 (issued August 27, 2014) (finding that when the medical adviser does not 

provide sufficient explanation for his rating that his report is not entitled to constitute the weight of the medical 

opinion evidence).

27 R.R., Docket No. 16-0589 (issued February 3, 2017).
9

ORDER

IT IS HEREBY ORDERED THAT the March 1, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

consistent with this decision.

Issued: March 14, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board