United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.C., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Santee, CA, Employer 

__________________________________________ 

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Docket No. 17-0019 

Issued: January 11, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 6, 2016 appellant filed a timely appeal from a May 24, 2016 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 met his burden of proof to establish more than five percent 

permanent impairment of his right lower extremity, for which he received a schedule award. 

 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.2 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

follow. 

On April 24, 2013 appellant, then a 29-year-old border patrol agent, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained injury on April 21, 2013 when his right foot 

was caught in a pile of rocks and his right leg twisted as he fell. OWCP accepted sprain of 

unspecified sites of his right leg and knee. Appellant stopped work and received disability 

compensation on the daily rolls from June 10 to 24, 2013. 

The findings of May 2, 2013 magnetic resonance imaging (MRI) scan testing of 

appellant’s right ankle showed a low-to-moderate grade partial tear at the level of the fibula tip 

with immediate reconstitution distally, partial tear of the peroneus brevis tendon, bone bruise of 

the posterior talus, and a low-grade acute sprain of the calcaneofibular ligament with associated 

marrow edema involving the posterior talus. 

On December 20, 2013 appellant filed a claim for compensation (Form CA-7) claiming a 

schedule award due to his accepted work injury. 

On February 6, 2014 OWCP advised appellant that he needed to submit an impairment 

rating derived in accordance with the standards of the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009). 

By decision dated February 11, 2015, OWCP denied appellant’s schedule award claim 

because he had not submitted medical evidence of an employment-related impairment. 

Appellant submitted an October 29, 2013 report in which Dr. Tal S. David, an attending 

Board-certified orthopedic surgeon, reported findings of the physical examination he conducted 

on that date. Dr. David noted that appellant complained of mild right calf weakness and loss of 

right ankle internal rotation. He advised that, upon testing of various ankle motions, appellant 

had full right ankle range of motion compared to the opposite side, except that his left ankle 

inversion was to 30 degrees and his right ankle inversion was only to 20 degrees. Dr. David 

noted that, based on Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501 of the 

sixth edition of the A.M.A., Guides, appellant’s moderate motion deficit on right ankle inversion 

and “mild weakness of both the inversion and posterior tibial tendon” meant that he had 12 

percent permanent impairment of his right lower extremity. He indicated that, at the time of the 

October 29, 2013 examination, appellant had reached maximum medical improvement. 

On April 15, 2015 Dr. Leonard A. Simpson, a Board-certified orthopedic surgeon serving 

as an OWCP medical adviser, discussed his review of the medical evidence of record, including 

Dr. David’s October 29, 2013 report. He noted that, under Table 16-2 (Foot and Ankle Regional 

Grid) of the sixth edition of the A.M.A., Guides, appellant had a right ankle strain with mild 

motion deficit, which placed him under class 1 for a diagnosis-based rating (five percent default 

 2

 Docket No. 15-1630 (issued October 23, 2015). 
3

rating). Dr. Simpson indicated that the records documented some loss of subtalar inversion, 

which would be considered “mild” under Table 16-20 on page 549. He assigned a grade 

modifier for Functional History (GMFH) of 1 and a grade modifier for Clinical Studies (GMCS) 

of 1 (confirmed peroneus brevis partial tear). Dr. Simpson found that the grade modifier for 

Physical Examination (GMPE) was nonapplicable because the documented loss of motion was 

utilized for placement of appellant’s condition under a class 1 diagnosis-based 

rating. Application of the net adjustment formula resulted in no adjustment from the default 

value of five percent and therefore appellant had a total permanent impairment of his right lower 

extremity of five percent.3

 Dr. Simpson indicated that the date of maximum medical 

improvement would correspond to Dr. David’s October 29, 2013 examination and noted, “This 

reviewer would recommend 5 percent right lower extremity impairment and challenge the higher 

rating calculated at 12 percent, which is not supported by the data documented.” 

In a May 4, 2015 decision, OWCP vacated its February 11, 2015 decision, noting that 

appellant’s submission of the October 29, 2013 report of Dr. David was sufficient to require this 

action. It indicated that a schedule award decision was attached. In another decision also dated 

May 4, 2015, OWCP granted appellant a schedule award for five percent permanent impairment 

of his right leg. The award ran for 14.4 weeks from October 29, 2013 to February 6, 2014 and 

was based on Dr. Simpson’s impairment rating derived from the examination findings of 

Dr. David. Appellant appealed to the Board. 

By decision dated October 23, 2015, the Board set aside OWCP’s May 4, 2015 decision 

due to its finding that there was a conflict in the medical opinion evidence regarding the 

permanent impairment of appellant’s right lower extremity between Dr. David, the attending 

physician, and Dr. Simpson, OWCP’s medical adviser. In order to resolve the conflict in the 

medical opinion evidence, the Board remanded the case to OWCP for referral of appellant to an 

impartial medical specialist for an examination and evaluation of the permanent impairment of 

his right lower extremity. The Board directed OWCP to issue a de novo decision regarding his 

entitlement to schedule award compensation after carrying out this development. 

On remand OWCP referred appellant to Dr. Harry R. Boffman, Jr., a Board-certified 

orthopedic surgeon, for an impartial medical examination and opinion on the extent of the 

permanent impairment of his right lower extremity under the standards of the sixth edition of the 

A.M.A., Guides. 

In a March 4, 2016 report, Dr. Boffman recounted appellant’s factual and medical 

history, including the results of diagnostic testing, and detailed findings of the physical 

examination he performed on March 3, 2016. He noted that appellant had a chief complaint of 

mild, intermittent pain, and mild weakness in his right calf. Dr. Boffman indicated that 

examination of the right calf revealed tenderness to deep palpation at the medial 

musculotendinous junction of the gastrocsoleus group. The sensory examination of the lower 

extremities was normal, but appellant exhibited some weakness after repeated heel lift in the 

right posterior calf. Dr. Boffman provided range of motion findings for the knees and ankles and 

noted that, with respect to ankle motion, there was mild restriction of subtalar motion on the right 

 3 See infra note 11. 
4

as compared to the left. He diagnosed intact Achilles tendon with edema in the Kager’s fat pad 

compatible with paratendonitis, low-to-mild grade partial tearing of the peroneus brevis tendon 

at the level of the fibular tip, low grade acute sprain of the calcaneal fibular ligament with 

associated marrow edema involving the distal fibular tip, and bone bruise over the posterior 

talus. Dr. Boffman indicated that, using Table 16-2 (Foot and Ankle Regional Grid) on page 501 

of the sixth edition of the A.M.A., Guides, appellant’s right lower extremity condition should be 

considered under the diagnosis-based category relating to a strain, tendinitis, or history of a 

partially ruptured peroneus brevis tendon. He noted that appellant’s condition would fall under 

class 1 on Table 16-2, due to motion deficits, with a default value of five percent permanent 

impairment of the right lower extremity.4

 With respect to grade modifiers, Dr. Boffman 

referenced Table 16.6, Table 16.7, and Table 16-8 on pages 516 through 520 and indicated that 

appellant had a GMFH of 1 due to a moderate problem, a GMPE of 1 due to a mild problem, and 

a GMCS of 2 due to a moderate problem (partial tear of the peroneus tendon). He advised that 

application of the net adjustment formula yielded the result of +1 and meant that there was 

movement one space to the right of the default value of five percent permanent impairment on 

Table 16-2, i.e., to the value of six percent permanent impairment. Dr. Boffman determined that 

appellant had total permanent impairment of his right lower extremity of six percent. 

In a report dated May 16, 2016, Dr. Jovito Estaris, a Board-certified occupational 

medicine physician and OWCP medical adviser, reviewed the March 4, 2016 report of 

Dr. Boffman and summarized some of the findings of the report. He indicated that, using Table 

16-2 on page 501 of the sixth edition of the A.M.A., Guides, appellant’s right lower extremity 

condition should be considered under the diagnosis-based category relating to a strain, tendinitis, 

or history of a partially ruptured peroneus brevis tendon. Dr. Estaris found that appellant’s 

condition would fall under class 1, due to motion deficits, with a default value of five percent 

permanent impairment of the right lower extremity. He indicated that, with respect to grade 

modifiers, appellant had a GMFH of 1 due to intermittent pain, and a GMPE of 1 due to a mild 

deficit of range of motion. Dr. Estaris determined that GMCS would not be used in the net 

adjustment formula because the MRI scan showing a partially ruptured right peroneus brevis 

tendon was used to determine the diagnosis-based class. He advised that application of the net 

adjustment formula yielded the result of zero and meant that there was no movement from the 

default value of five percent permanent impairment on Table 16-2. Dr. Estaris concluded that 

appellant had five percent permanent impairment of his right lower extremity. 

By decision dated May 24, 2016, OWCP determined that appellant had no more than five 

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

award.5

 Its determination was based on the impairment rating calculated by Dr. Estaris, 

OWCP’s medical adviser, after reviewing the examination findings of Dr. Boffman. OWCP 

 4

 Dr. Boffman noted that “range of motion was used for Class Assignment and cannot be used again for Range of 

Motion Impairment.” 

5

 The wording of OWCP’s May 24, 2016 decision suggests that it was granting appellant a new schedule award 

for five percent permanent impairment of his right lower extremity, but appellant has only received schedule award 

compensation for five percent permanent impairment of his right lower extremity through the May 4, 2015 schedule 

award decision. Appellant received monies from that schedule award covering the period October 29, 2013 to 

February 6, 2014. 
5

noted that the weight of the medical evidence regarding appellant’s permanent impairment rested 

with the opinion of Dr. Estaris. 

LEGAL PRECEDENT 

The schedule award provision of FECA6

 and its implementing regulation7 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 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.8

 The effective date of the sixth edition of 

the A.M.A., Guides is May 1, 2009.9

In determining impairment for the lower extremities under the sixth edition of the 

A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower 

extremity to be rated. For evaluation of the claimed impairment in this case, reference is made to 

Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501.10 After the class of diagnosis 

is determined from the Foot and Ankle Regional Grid (including identification of a default grade 

value), the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The Net 

Adjustment Formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11 

Section 8123(a) of FECA provides in pertinent part: “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.”12 When there are 

opposing reports of virtually equal weight and rationale, the case must be referred to an impartial 

medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical 

evidence.13 In situations where there exist opposing medical reports of virtually equal weight and 

rationale and the case is referred to an impartial medical specialist for the purpose of resolving the 

 6

 5 U.S.C. § 8107. 

7

 20 C.F.R. § 10.404. 

8 Id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.6 (January 2010); id. Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (January 2010). 

9 Id. at Chapter 2.808.5a (February 2013); see also id. at Chapter 3.700, Exhibit 1 (January 2010). 

10 See A.M.A., Guides 501-08 (6th ed. 2009). 

11 Id. at 515-21. 

12 5 U.S.C. § 8123(a). 

13 William C. Bush, 40 ECAB 1064, 1975 (1989). 
6

conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper 

factual background, must be given special weight.14

OWCP procedures provide that, if a case has been referred for a referee evaluation to 

resolve the issue of permanent impairment, it is appropriate for OWCP’s medical adviser to 

review the calculations to ensure the referee physician appropriately used the A.M.A., Guides. It 

procedures further note that the Board has held that, while an OWCP medical adviser may 

review the opinion of a referee specialist in a schedule award case, the resolution of the conflict 

is the specialist’s responsibility. OWCP’s medical adviser cannot resolve a conflict in medical 

opinion. If necessary, clarification to the referee examiner may be needed.15

ANALYSIS 

OWCP accepted that on April 21, 2013 appellant sustained a sprain of unspecified sites 

of his right leg and knee and, on December 20, 2013, he filed a Form CA-7 claiming a schedule 

award due to his accepted work injury. In a decision dated May 4, 2015, it granted him a 

schedule award for five percent permanent impairment of his right leg. By decision dated 

October 23, 2015, the Board found that there was a conflict in the medical opinion evidence 

regarding the permanent impairment of appellant’s right lower extremity between Dr. David, an 

attending physician, and Dr. Simpson, an OWCP medical adviser. It remanded the case to 

OWCP for referral of appellant to an impartial medical specialist for an examination and 

evaluation of the permanent impairment of his right lower extremity. On remand appellant was 

referred to Dr. Boffman for this purpose. By decision dated May 24, 2016, OWCP found that 

appellant had no more than five percent permanent impairment of his right lower extremity. The 

determination was based on the impairment rating calculated by Dr. Estaris, an OWCP medical 

adviser, after reviewing the examination findings of Dr. Boffman. 

The Board finds that the case is not in posture for decision regarding whether appellant 

has more than five percent permanent impairment of his right lower extremity. 

Appellant was properly referred to Dr. Boffman due to a conflict in the medical opinion 

evidence regarding the permanent impairment of his right lower extremity, as noted by the Board 

in its October 23, 2015 decision.16 In a March 4, 2016 report, Dr. Boffman determined that 

appellant had total permanent impairment of his right lower extremity of six percent. He 

indicated that, using Table 16-2 (Foot and Ankle Regional Grid) on page 501 of the sixth edition 

of the A.M.A., Guides, appellant’s right lower extremity condition should be considered under 

the diagnosis-based category relating to a strain, tendinitis, or history of a partially ruptured 

peroneus brevis tendon. Dr. Boffman noted that appellant’s condition would fall under class 1 

under Table 16-2, due to motion deficits, with a default value of five percent permanent 

impairment of the right lower extremity. With respect to grade modifiers, he referenced Table 

16.6, Table 16.7, and Table 16-8 on pages 516 through 520 and indicated that appellant had a 

 14 R.S., Docket No. 08-1158 (issued January 29, 2009). 

15 Supra note 2 at Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.8k 

(September 2010); Richard R. Lemay, 56 ECAB 341 (2005). 

16 See supra notes 12 and 13. 
7

GMFH of 1 due to a moderate problem, a GMPE of 1 due to a mild problem, and a GMCS of 2 

due to a moderate problem (partial tear of the peroneus tendon). Dr. Boffman advised that 

application of the net adjustment formula yielded the result of +1 and meant that there was 

movement one space to the right of the default value of five percent permanent impairment on 

Table 16-2, i.e., to the value of six percent permanent impairment. 

Instead of evaluating whether the report of Dr. Boffman, the impartial medical specialist, 

constituted the special weight of the medical evidence with respect to permanent impairment, 

OWCP decided that the weight of the medical evidence rested with the May 14, 2016 report of 

Dr. Estaris, which contained an opinion that appellant had five percent permanent impairment of 

his right lower extremity. The difference between the impairment rating of Dr. Boffman and the 

impairment rating of Dr. Estaris was due to differing evaluations of the grade modifiers, 

particularly with regard to the GMCS. However, OWCP procedures and Board precedent 

provide that, while an OWCP medical adviser may review the opinion of a referee specialist in a 

schedule award case, the resolution of the conflict is the specialist’s responsibility and OWCP’s 

medical adviser cannot resolve a conflict in medical opinion.17

In a situation where OWCP secures an opinion from an impartial medical examiner for 

the purpose of resolving a conflict in the medical evidence and the opinion from such examiner 

requires clarification or elaboration, OWCP has the responsibility to secure a supplemental 

report from the examiner for the purpose of correcting the defect in the original opinion.18 

Therefore, the case shall be remanded to OWCP to provide Dr. Boffman an opportunity to 

provide clarification of his opinion that appellant has six percent permanent impairment of his 

right lower extremity under the standards of the sixth edition of the A.M.A., Guides. 

Dr. Boffman should explain each step of the impairment rating process, including providing 

rationale for his choice of grade modifiers, and application of the net adjustment formula.19 

After carrying out such development, OWCP shall issue a de novo decision regarding appellant’s 

entitlement to schedule award compensation. 

CONCLUSION 

The Board finds that the case is not in posture for decision regarding whether appellant 

has more than five percent permanent impairment of his right lower extremity, for which he 

received a schedule award. 

 17 See supra note 15. 

18 Nancy Lackner (Jack D. Lackner), 40 ECAB 238 (1988). See also id.

19 See supra note 11. 
8

ORDER 

IT IS HEREBY ORDERED THAT the May 24, 2016 decision of the Office of 

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

proceedings consistent with this decision of the Board. 

Issued: January 11, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy 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