United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Dover, NJ, Employer 

__________________________________________ 

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Docket No. 15-1252 

Issued: January 19, 2016 

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant 

Office of Solicitor, for the Director 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 14, 2015 appellant, through counsel, filed a timely appeal from a March 3, 2015 

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 the case. 

ISSUE 

The issue is whether appellant has more than 54 percent permanent impairment of the 

right lower extremity for which she received a schedule award. 

FACTUAL HISTORY 

On January 5, 2002 appellant, then a 47-year-old letter carrier, was injured in a motor 

vehicle accident while leaving the employing establishment parking lot to deliver mail. OWCP 

accepted appellant’s claim for right shoulder contusion and expanded her claim to include right 

Achilles tendon strain, plantar fasciitis, and sprain of the right ankle, right shoulder sprain, upper 

 1

 5 U.S.C. § 8101 et seq. 
2

arm, and rotator cuff.2

 It authorized several surgeries including those noted below. Appellant 

subsequently returned to work full-time limited duty. 

A magnetic resonance imaging (MRI) scan of the right ankle dated February 6, 2003 

revealed a nondisplaced intra-articular fracture, extending from the posterolateral tibial 

metadiaphysis to the joint surface, osteochondral injury with joint space narrowing, T2 weighted 

hyperintensity of the articulating surface of the tibia and anterior talar dome, and mild-tomoderate osteoarthritis of the tarsal bones. On June 17, 2003 Dr. Steven Stecker, a Boardcertified orthopedist, performed a left knee arthroscopy, partial medial meniscectomy, medial 

femoral condyle chondroplasty, and patellofemoral chondroplasty and diagnosed left knee 

degenerative joint disease. On March 13, 2006 Dr. Stecker performed a left total knee 

replacement and diagnosed left knee osteoarthritis. On June 26, 2006 he performed a total right 

knee replacement and diagnosed right knee osteoarthritis. 

On July 23, 2007 appellant requested a schedule award. She submitted a report from 

Dr. David Weiss, an osteopath, dated July 23, 2007. Dr. Weiss noted maximum medical 

improvement occurred on July 23, 2007. He diagnosed status post fracture to the right ankle 

joint by history, chronic post-traumatic right ankle strain and sprain with involvement of the 

anterior talofibular ligament, cumulative and repetitive trauma disorder to the right knee 

superimposed upon preexisting right knee pathology (status post sports-related injury 1973 with 

a tear of the medial meniscus and quadriceps tendon necessitating a 1973 open arthrotomy), 

aggravation and acceleration of underlying degenerative joint disease to the right knee, and status 

post right total knee replacement.3

 Dr. Weiss noted that, based on the fifth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment,4 (A.M.A., 

Guides) appellant had 50 percent impairment for status post right knee total arthroplasty with fair 

results;5 and 7 percent impairment for loss of dorsiflexion in the right ankle range.6 Using the 

Combined Values Chart, appellant had 54 percent impairment of the right lower extremity. 

On January 23, 2008 an OWCP medical adviser concurred with Dr. Weiss’ impairment 

rating. 

 2

 Appellant filed a claim on April 1, 2004 for osteoarthritis of her lower right leg caused by her employment 

duties, file number xxxxxx513. OWCP accepted appellant’s claim for aggravation of osteoarthritis of the right knee 

and left chondromalacia patellae. This claim was consolidated with the current claim before the Board. 

3

 Dr. Weiss also addressed conditions affecting other parts of the body. Appellant has only appealed from the 

schedule award decision for the right leg. 

4

 A.M.A., Guides (5th ed. 2001). 

5 Id. at 547, 549, Table 17-35, Table 17-33. 

6 Id. at 537, Table 17-11. 
3

In a decision dated March 31, 2008, OWCP granted appellant a schedule award for 54 

percent permanent impairment of the right leg.7 

Appellant came under the treatment of Dr. Wayne S. Berberian, a Board-certified 

orthopedist, from October 26, 2011 to February 7, 2012, for right foot pain and cavus foot 

deformity. Dr. Berberian noted examination findings of a tender cavus foot deformity, a 

calcaneocuboid joint almost parallel to the posterior cortex of the calcaneus, long extension of 

the anterior process of the calcaneus which came very close to the navicular, tibiotalar arthritis 

and subchondral cyst, and osteochondral defect. He recommended an insole to increase the 

surface area contacting the ground when she walks. 

On January 9, 2013 appellant filed a claim for an increased schedule award. She 

submitted a December 1, 2012 report from Dr. Weiss who noted that she had reached maximum 

medical improvement on December 1, 2012. Dr. Weiss noted that the lower extremity activity 

scale (LEAS) revealed an impairment level of 6/18 which equated to a disability of 67 percent 

involving the right leg. He noted examination of the right foot and ankle revealed diffuse 

tenderness over the anterior medial and posterior plantar aspects, retrocalcaneal tenderness, 

tenderness over the anterior talofibular ligament, and tibiotalar joint, tenderness over the medial 

malleolus and over the deltoid ligament. Range of motion (performed three times) revealed 

dorsiflexion of 10/15 degrees, plantar flexion of 55/55 degrees, inversion of 30/30 degrees, and 

eversion of 40/40 degrees. The anterior drawers’ sign continued to produce laxity and the talar 

tilt remained positive. Dr. Weiss diagnosed status post fracture to the right ankle joint by 

history, chronic post-traumatic right ankle strain and sprain with involvement of the anterior 

talofibular ligament and the deltoid ligament, chronic plantar fasciitis to the right foot, and 

calcaneal bursitis to the right foot. He noted that pursuant to Table 16-2, page 503, of the sixth 

edition of the A.M.A., Guides8

 that appellant had a right tibial plafond fracture with mild motion 

deficit resulting in 10 percent permanent impairment. Dr. Weiss noted that appellant was class 1 

with a default value of 10, the grade modifier for functional history was not applicable, the grade 

modifier for physical examination was 2, and the grade modifier for clinical studies was not 

applicable for a net adjustment of +1. He noted the default value would shift to class D for 12 

percent impairment of the right lower extremity for the right tibial plafond fracture. 

In a May 2, 2014 report, an OWCP medical adviser reviewed Dr. Weiss’ December 1, 

2012 report and concurred in his findings. 

In a June 3, 2014 decision, OWCP denied appellant’s claim for an increased schedule 

award. It noted that Dr. Weiss determined that appellant had 12 percent permanent impairment 

for a right tibial plafond fracture with mild motion deficit and the medical adviser concurred in 

these findings. However, OWCP found that appellant was previously awarded 54 percent for the 

 7

 This decision also granted appellant a schedule award for 37 percent impairment of the left leg. OWCP further 

noted that appellant had 17 percent impairment of the right arm but that, pursuant to OWCP procedures, appellant 

could not concurrently receive two schedule awards for different body parts. It noted that the award for the right 

arm would commence after the expiration of the leg awards on July 30, 2012. As noted above, this decision of the 

Board pertains only to permanent impairment of the right leg. 

8

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

right lower extremity on May 31, 2008 and thus he was not entitled to an increased schedule 

award as this would be duplicative. 

On June 10, 2014 appellant, through counsel, requested a telephonic hearing which was 

held before an OWCP hearing representative on January 14, 2015. Counsel asserted that the 

current impairment rating of 12 percent was related to the right foot and ankle not the right knee 

which was considered a different part of the extremity. Appellant asserted that she was entitled 

to a separate impairment rating for the ankle/foot impairment. 

In a decision dated March 3, 2015, an OWCP hearing representative affirmed the 

decision dated June 3, 2014. He noted that the rating provided by Dr. Weiss and confirmed by 

the medical adviser was for the leg even though it was evaluated as a tibial plafond fracture or 

impairment of the ankle or foot. The hearing representative noted that ankle impairments were 

those of the lower extremity and were included in the March 31, 2008 decision. 

LEGAL PRECEDENT 

The schedule award provision of FECA9 and its implementing federal regulations10 set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss or loss of use, of scheduled members, functions, and organs of the body. 

FECA, however, does not specify the manner by which the percentage loss of a member, 

function, or organ shall be determined. To ensure consistent results and equal justice for all 

claimants under the law, good administrative practice requires the use of uniform standards 

applicable to all claimants.11 The A.M.A., Guides, has been adopted by the implementing 

regulations as the appropriate standard for evaluating schedule losses. For decisions issued after 

February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.12 

For decisions issued after May 1, 2009, the sixth edition will be used.13 

The sixth edition requires identifying the impairment class for the diagnosed condition 

(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH), 

Physical Examination (GMPE), and Clinical Studies (GMCS).14 The net adjustment formula is 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). 

 9

 5 U.S.C. § 8107. 

10 20 C.F.R. § 10.404. 

11 Ausbon N. Johnson, 50 ECAB 304 (1999). 

12 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003). 

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

see also id. at Chapter 3.700, Exhibit 1 (January 2010). 

14 A.M.A., Guides 494-531. 
5

ANALYSIS 

Appellant’s claim was accepted by OWCP for conditions that included right Achilles 

tendon strain, right plantar fasciitis, sprain of the right ankle, sprain of the right shoulder, upper 

arm and rotator cuff, aggravation of osteoarthritis of the right knee, and left chondromalacia 

patellae. OWCP authorized surgery and appellant underwent a left knee arthroscopy on June 17, 

2003, a left total knee replacement on March 13, 2006, and a total right knee replacement on 

June 26, 2006. In its March 3, 2015 decision, it found that appellant had not established an 

increased permanent impairment to her right lower extremity beyond the 54 percent permanent 

impairment previously granted. 

Regarding appellant’s right leg impairment, the Board noted that in 2007 appellant 

requested a schedule award based on her accepted aggravation of osteoarthritis of the right knee 

and Achilles tendon strain. On January 23, 2008 an OWCP medical adviser concurred with 

Dr. Weiss’ determination that appellant had 54 percent permanent impairment of the right lower 

extremity. The medical adviser agreed that the impairment rating was comprised of 50 percent 

impairment for the right knee and 7 percent impairment for the right ankle. Applying the 

Combined Values Chart, appellant had 54 percent permanent impairment of the right leg under 

the A.M.A., Guides. However, in its March 3, 2015 decision, OWCP denied appellant’s claim 

for an increased schedule award for the right lower extremity because Dr. Weiss’ December 1, 

2012 impairment rating for the right lower extremity was duplicative of the schedule award 

previously granted. Dr. Weiss’ December 1, 2012 impairment rating, with whom an OWCP 

medical adviser concurred, found appellant sustained 12 percent lower extremity impairment for 

a right tibial plafond fracture with mild motion deficits. This was an increase of five percent 

impairment in the ankle region since the 2008 award. FECA provides that the period of 

compensation payable under the schedule award provision of FECA is reduced by the period of 

compensation paid under the schedule for an earlier injury if compensation in both cases is for 

disability for the same member or function and OWCP finds that compensation payable for the 

later disability would in whole or in part duplicate the compensation payable for the preexisting 

disability.15 Here, OWCP has not sufficiently explained why the 12 percent permanent 

impairment attributable to the ankle region by Dr. Weiss would wholly duplicate the 

compensation previously paid.16 The A.M.A., Guides, Chapter 16, The Lower Extremities, 

Figure 16-1, page 493-495, provides that the lower extremity is divided into 3 regions (distal to 

proximal): Foot and ankle, knee and hip. Section 16.3f Combining and Converting 

Impairments, page 529, provides that if there are multiple diagnoses at maximum medical 

impairment, the examiner should determine if each should be considered or the impairments are 

 15 5 U.S.C. § 8108. 

16 T.S., Docket No. 09-1308 (issued December 22, 2009) (case remanded where OWCP did not sufficiently 

explain why appellant’s impairment due to a meniscectomy duplicated his previous compensation award paid for the 

same schedule member). 
6

duplicative. If there are multiple lower extremity impairments in separate regions they are 

calculated and combined at the lower extremity level.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, it shares 

responsibility in the development of the evidence. Accordingly, once OWCP undertakes to 

develop the medical evidence further, it has the responsibility to do so in the proper manner.18 

The Board will remand the case to OWCP for further medical development with regard to 

whether Dr. Weiss’ December 1, 2012 impairment rating for the ankle region, concurred with by 

an OWCP medical adviser, would wholly duplicate the award previously made. Following this 

and any other further development as deemed necessary, OWCP shall issue a de novo decision. 

CONCLUSION 

The Board finds this case not in posture for decision regarding appellant’s entitlement to 

a schedule award. 

 17 See W.H., Docket No. 13-146 (issued April 12, 2013) (where the Board noted that it was proper for an OWCP 

medical adviser to combine ratings from different regions of the extremity and, where this yielded greater 

impairment than that which was previously granted, an additional award was proper). See also Erma L. Moore, 

Docket No. 99-1554 (issued September 25, 2000) (the fact that appellant established that she had 10 percent 

impairment of the left arm in 1996 and was evaluated as having two percent impairment of that arm in 1998 did not 

mean that OWCP could deny her claim for a permanent impairment of the right arm on the grounds that she 

received a greater total award than she would be entitled to for both arms). 

18 John W. Butler, 39 ECAB 852 (1988). 
7

ORDER 

IT IS HEREBY ORDERED THAT the March 3, 2015 decision of the Office of 

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

accordance with this decision of the Board. 

Issued: January 19, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board