United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.V., Appellant

and

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, Cleveland, OH, Employer

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Docket No. 19-0499

Issued: August 15, 2019

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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 8, 2019 appellant filed a timely appeal from a December 18, 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 his burden of proof to establish more than seven 

percent permanent impairment of his right lower extremity, for which he previously received a 

schedule award.

FACTUAL HISTORY

On April 18, 2013 appellant, then a 39-year-old Deputy U.S. Marshal, filed a notice of 

traumatic injury (Form CA-1) alleging that on April 15, 2013 he ruptured his right Achilles tendon 

while playing basketball, as part of an approved physical fitness regimen, while in the performance 

 

1 5 U.S.C. § 8101 et seq.
2

of duty. OWCP accepted the claim for a ruptured right Achilles tendon. On April 17, 2013

appellant underwent an approved surgical repair of the accepted condition. He returned to fulltime limited-duty work on June 3, 2013, and full-time full-duty work on July 29, 2013.

On May 25, 2018 appellant filed a claim for a schedule award (Form CA-7). 

On June 4, 2018 OWCP referred appellant to Dr. Kimberly Togliatti-Trickett, Boardcertified in physical medicine and rehabilitation, for a second opinion evaluation pursuant to the 

sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides).

2

In a July 20, 2018 report, Dr. Togliatti-Trickett noted appellant’s medical and surgical 

history, reported her findings upon physical examination, and provided an impairment rating. She 

explained that appellant’s permanent impairment rating was based on the diagnosis of a ruptured 

right Achilles tendon and surgical repair. Dr. Togliatti-Trickett found decreased girth 

measurement of the right calf compared to the left calf and decreased speed, strength, and mobility 

of approximately 10 percent. Utilizing the diagnosis-based impairment (DBI) methodology she 

referred to Table 16-2 on page 502 of the A.M.A., Guides3and determined that appellant had one 

percent permanent impairment of his right lower extremity. Dr. Togliatti-Trickett referred to Table 

16-10 on page 530 and noted that this corresponded to one percent whole person impairment. She 

advised that appellant reached maximum medical improvement (MMI) on July 29, 2013. 

On August 8, 2018 OWCP forwarded Dr. Togliatti-Trickett’s July 20, 2018 report to

Dr. Kevin Kuhn, a Board-certified orthopedic surgeon serving as an OWCP district medical 

adviser (DMA).

In an August 16, 2018 report, the DMA explained that appellant had two percent permanent 

impairment, pursuant to the DBI method set forth at A.M.A., Guides, Table 16-2 on page 501, 

based upon his diagnosis of ruptured Achilles tendon. He noted that Dr. Togliatti-Trickett had not 

provided three range of motion (ROM) measurements. 

On August 21, 2018 OWCP requested an addendum from Dr. Togliatti-Trickett which 

provided separate calculations using the ROM and DBI methodologies.

In a September 20, 2018 addendum, Dr. Togliatti-Trickett increased her DBI computation 

from one percent to five percent. For ROM she indicated that appellant had a right lower extremity 

impairment rating of seven percent. Dr. Togliatti-Trickett did not provide measurements or 

explain how she arrived at her calculations, other than to refer to Figure 16-12 on page 534 of the 

A.M.A., Guides. 

On October 1, 2018 OWCP provided Dr. Togliatti-Trickett’s addendum reports to the 

DMA. In an October 9, 2018 response, he explained that Dr. Togliatti-Trickett had not provided

sufficient information to support the increase in the DBI impairment rating to five percent. The 

DMA referred to the A.M.A., Guides and indicated that the DBI rating of appellant’s right lower 

 

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

3

Id.
3

extremity was two percent. He explained that he did not agree with Dr. Togliatti-Trickett’s 

findings because the clinical documentation provided did not support a default percentage of 5 

percent, as her notes reported 10 percent decrease in strength and objective ROM compared to the 

contralateral side, and the default should be 2 percent pursuant to Table 16-2 on page 501. The 

DMA further noted that Dr. Togliatti-Trickett’s clinical notes included three sets of measurements 

for ROM and referred to the A.M.A., Guides at Table 16-2 on page 501, Table 16-22 on page 549, 

Table 16-25 on page 550, and Table 16-17 on page 545. He explained that the ROM method also 

resulted in a finding of two percent right lower extremity permanent impairment. 

In an October 16, 2018 report, Dr. Matthew E. Levy, a Board-certified orthopedic surgeon, 

determined that appellant had 13 percent permanent impairment of the right lower extremity. He 

referred to Table 16-5 on page 515 of the A.M.A., Guides and noted that appellant’s Achilles’

tendon injury “results in a class 1 problem” based on the foot and ankle regional grid. Dr. Levy

explained that functional history resulted in a grade 1 modifier (GMFH) based on gait 

derangement. He found 4.5 centimeters of calf atrophy and indicated that appellant had a grade 

IV physical examination modifier (GMPE) based on calf atrophy. Dr. Levy indicated that the 

modifier based on clinical studies (GMCS) was not available due to an absence of imaging. He

explained that “the grade of lower extremity impairment is moved two spots to the right resulting 

in 13 [percent] lower extremity impairment.” Dr. Levy referred to Table 16.1 on page 495 and 

explained that this resulted in five percent whole person impairment.

On November 16, 2018 OWCP referred Dr. Levy’s October 16, 2018 report to the DMA

and requested that he update the permanent impairment rating for appellant’s right lower extremity

based upon the physical examination findings of Dr. Levy.

In a November 21, 2018 report, the DMA noted that he reviewed the new report from

Dr. Levy and that he disagreed with his impairment rating. He utilized the A.M.A., Guides and 

explained that appellant had a normal gait, 4.5 centimeters of atrophy, and clinical studies 

conforming a mild pathology. The DMA also noted that appellant’s motion deficits had improved 

and therefore based on Table 16-22 on page 549 of the A.M.A., Guides would be rated as mild. 

He utilized the DBI method and explained that the default rating would be five percent based on 

Table 16-2 on page 501. The DMA also noted that for an Achilles tendon rupture,

4

appellant had 

a class 1 impairment for a mild ROM finding and a default impairment rating of five percent. He 

referred to Table 16-6 on page 516 and explained that appellant had a GMFH of 0 as there was no 

gait derangement. The DMA referred to Table 16-7 on page 517 and explained that for severe 

atrophy appellant had a GMPE of a grade 4. He referred to Table 16-8 on page 519 and found that 

appellant had a GMCS of grade 1. The DMA utilized the net adjustment formula and determined 

 

4 While the DMA indicated left Achilles tendon rupture, this appears to be a typographical error, as he indicates the 

claim is accepted for a right Achilles tendon rupture in the initial paragraph of his report.
4

that it yielded an adjustment of 1 (for a grade E). He found that this resulted in seven percent right 

lower extremity impairment. The DMA determined that appellant reached MMI on July 20, 2018.

On December 18, 2018 OWCP granted appellant a schedule award for seven percent 

permanent impairment of the right lower extremity. The award covered a period of 20.16 weeks 

from July 20 to December 8, 2018.

LEGAL PRECEDENT

The schedule award provisions of FECA,5and its implementing federal regulation,6set 

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. FECA, 

however, does not specify the manner in which the percentage loss of a member shall be 

determined. The method used in making such a determination is a matter which rests in the 

discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized 

the use of a single set of tables so that there may be uniform standards applicable to all claimants. 

OWCP evaluates the degree of permanent impairment according to the standards set forth in the 

specified edition of the A.M.A., Guides, published in 2009.7 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.8

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the 

World Health Organization’s International Classification of Functioning Disability and Health 

(ICF).9 Under the sixth edition, the evaluator identifies the impairment class of diagnosis (CDX), 

which is then adjusted by GMFH, GMPE, and GMCS.10 The net adjustment formula is (GMFH -

CDX) + (GMPE - CDX) + (GMCS - CDX).11 Evaluators are directed to provide reasons for their 

impairment choices, including the choices of diagnoses from regional grids and calculations of 

modifier scores.12

 

5 See supra note 1.

6 20 C.F.R. § 10.404.

7 For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.6 (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 

3.700, Exhibit 1 (January 2010).

8 See J.G., Docket No. 19-0369 (issued June 11, 2019); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro 

Rivera, 12 ECAB 348 (1961).

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

Health (ICF): A Contemporary Model of Disablement.

10 Id. at 494-531.

11 Id. at 521.

12 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).
5

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

should be routed to a DMA for an opinion concerning the nature and percentage of impairment in 

accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of 

impairment specified.13 

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish more than seven 

percent permanent impairment of his right lower extremity, for which he previously received a 

schedule award.

OWCP referred appellant for a second opinion evaluation with Dr. Togliatti-Trickett. In 

reports dated July 20 and September 20, 2018, Dr. Togliatti-Trickett found that appellant had five 

percent permanent impairment of the right lower extremity. These reports do not support a finding 

of more than seven percent permanent impairment of the right lower extremity. While

Dr. Togliatti-Trickett also related that appellant had one percent whole person impairment, a whole 

person impairment rating is of no probative value as a whole person permanent impairment rating 

is not permitted under FECA.14

In support of his claim, appellant submitted an October 16, 2018 report from Dr. Levy, 

who determined that appellant had 13 percent permanent impairment of the right lower extremity. 

Dr. Levy referred to Table 16-5 on page 515 of the A.M.A., Guides, and determined that appellant 

had a “class 1 problem” based on the foot and ankle regional grid. He selected a GMPE of 1 based 

on gait derangement. However, the basis for this grade modifier is unclear as Dr. Levy indicated 

that appellant “is a healthy fit appearing gentleman with a normal gait pattern.” He indicated that 

the GMCS was not available due to an absence of imaging. Medical evidence of record however 

indicated that clinical studies revealed mild pathology. As Dr. Levy’s report was not based on 

accurate medical findings, his report was insufficient to establish appellant’s permanent 

impairment of the right lower extremity.

15

 While Dr. Levy also provided a whole person 

permanent impairment, as previously explained, a whole person permanent impairment rating is 

not permitted under FECA.16

Thereafter OWCP pursuant to its procedures routed the medical reports of record to the 

DMA, Dr. Kuhn for evaluation of appellant’s right lower extremity permanent impairment.

17

In a November 21, 2018 report, the DMA properly applied the A.M.A., Guides to

Dr. Levy’s findings. He explained that gait derangement could not be utilized as a modifier, as 

appellant’s gait was normal. The DMA noted that the clinical studies of record confirmed a mild 

pathology, however appellant’s range of motion deficits had improved compared to previous 

 

13 See supra note 7 at Chapter 2.808.6(f) (March 2017). See J.J., Docket 18-1615 (issued March 5, 2019).

14 E.R., Docket No. 18-1646 (issued May 17, 2019); Marilyn S. Freeland, 57 ECAB 607 (2006).

15 F.T., Docket No. 16-1236 (issued March 12, 2018).

16

 Supra note 14. 

17 Supra note 13.
6

documented examinations. He utilized the net adjustment formula and determined that appellant 

had a seven percent right lower extremity impairment. The Board finds that the DMA accurately 

summarized the relevant medical evidence, provided detailed findings on examination, and 

reached conclusions about appellant’s condition which comported with his findings, and with the 

appropriate tables of the A.M.A., Guides.

18

 His report therefore carries the weight that appellant 

has seven percent permanent impairment of the right lower extremity and constitutes the weight 

of the medical evidence.19

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 his burden of proof to establish more than seven 

percent permanent impairment of his right lower extremity, for which he previously received a 

schedule award.

ORDER

IT IS HEREBY ORDERED THAT the December 18, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 15, 2019

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

 

18 J.M., Docket No. 18-1387 (issued February 1, 2019).

19 F.T., supra note 15.