United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.E., Appellant

and

DEPARTMENT OF THE INTERIOR, BUREAU 

OF INDIAN AFFAIRS, Neopit, WI, Employer

__________________________________________

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Docket No. 18-1661

Issued: May 28, 2019

Appearances: Case Submitted on the Record

Stephanie N. Leet, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 4, 2018 appellant, through counsel, filed a timely appeal from an August 13, 

2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq. 
2

ISSUE

The issue is whether appellant has met his burden of proof to establish more than 12 percent 

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

award compensation. 

FACTUAL HISTORY

On January 20, 2014 appellant, then a 26-year-old logger-sawyer, filed a traumatic injury 

claim (Form CA-1) alleging that: on January 9, 2014 he was struck by a falling tree limb and 

sustained multiple fractures of his right leg, ankle, and foot; broken teeth; a right elbow laceration;

and a traumatic brain injury while in the performance of duty. He stopped work on the date of 

injury. By decision dated February 7, 2014, OWCP accepted that appellant sustained a concussion 

without loss of consciousness and a closed fracture of the right tibia.

Appellant underwent provisional external fixation of the right ankle fractures on an 

emergent basis soon after the injury. On January 30, 2014 Dr. Brian R. Sears, an attending Boardcertified orthopedic surgeon, performed an open reduction and internal fixation (ORIF) of right 

tibial plafond and lateral malleolus fractures. The fixation was located directly under an 

intramedullary nail placed after a 2005 motor vehicle accident.3 OWCP paid appellant 

compensation for total disability commencing February 25, 2014.4 Appellant did not return to 

work.

On November 6, 2014 OWCP expanded its acceptance of the claim to include a closed 

fracture of the right lateral malleolus and two broken teeth. 

On January 12, 2017 appellant filed a claim for a schedule award (Form CA-7).

In support of his claim, appellant submitted an August 4, 2016 report by Dr. Neil Allen, a 

Board-certified internist and neurologist, who found 22 percent permanent impairment of the right 

lower extremity due to a moderate inversion deficit of the right ankle caused by the accepted 

fractures. Dr. Allen noted appellant’s history of injury and treatment. His findings on examination 

included a stiff gait pattern, tenderness to palpation of the right ankle mortise joint, and mild-tomoderate crepitus of the right ankle. Dr. Allen found restricted range of motion of the right ankle, 

including inversion limited to 10 degrees. He referred to Table 16-2 (ankle grid) on page 503 of 

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

Impairment (A.M.A., Guides) under ankle fracture/dislocation.5 Dr. Allen determined that 

appellant fell into a class of diagnosis of 2 for a moderate inversion deficit, grade C impairment 

with a grade modifier of one for functional history (GMFH) (altered gait, American Academy of 

 

3

In reports dated January 9 and June 2, 2014, Dr. Sears noted that appellant had sustained right lower extremity 

injuries in a severe motor vehicle accident in 2005, including a right tibial fracture with intramedullary nail fixation 

and a right foot fracture. He further noted that, prior to the January 30, 2014 employment injury, he had recovered 

well and functioned normally from an orthopedic standpoint.

4 Appellant participated in physical therapy treatments commencing in June 2014. 

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

Orthopedic Surgeons (AAOS) lower limb questionnaire score of 66), a grade modifier of 2 for 

physical examination (GMPE) (mild alteration in alignment/deformity compared to unaffected 

side, mild palpatory findings, mild motion deficit -- eversion, and 2 cm muscle atrophy at right 

calf), and a grade modifier of 3 for clinical studies (GMCS) (moderate-to-severe right midfoot 

degenerative joint space narrowing and advanced arthritic changes within the talonavicular joint 

and midfoot), for a net adjustment of zero. He opined that appellant had 22 percent right lower 

extremity permanent impairment. Dr. Allen noted that appellant had reached maximum medical 

improvement (MMI).

OWCP referred Dr. Allen’s report, the medical record, and a statement of accepted facts 

(SOAF) to Dr. Morley Slutsky, a Board-certified occupational medicine specialist and an OWCP 

district medical adviser (DMA), to obtain an impairment rating. In a report dated February 23, 

2017, the DMA opined that appellant’s most impairing diagnosis was a tibial plafond fracture with 

mild motion loss, rated at class 1, row 2 of Table 16-2 on page 503. He found a GMFH of 1 

(AAOS questionnaire, no gait aid or external orthotic device), a GMPE of 2 (tenderness and 

crepitation), and no GMCS as the studies had been used to place appellant into the correct 

diagnostic class and could not be used again to assign a grade modifier. Dr. Slutsky calculated a 

net adjustment of 1, for a final grade of D, equaling 12 percent permanent impairment of the right 

lower extremity. He noted that appellant had reached MMI as of the date of Dr. Allen’s 

examination.

By decision dated March 23, 2017, OWCP granted appellant a schedule award for 12 

percent permanent impairment of the right lower extremity. The award covered a period of 34.56 

weeks for the period August 4, 2016 to April 2, 2017.

On July 31, 2017 appellant, through counsel, requested reconsideration, contending that

the DMA had misapplied the A.M.A., Guides and had failed to consider all relevant medical 

evidence. She submitted a July 13, 2017 addendum report by Dr. Allen, in which he clarified that 

appellant’s right ankle inversion was limited to five degrees. Dr. Allen also contended that the 

GMCS of 3 should be allowed. He reiterated his prior assessment of 22 percent permanent 

impairment of the right lower extremity.

On August 25, 2017 OWCP requested that the DMA review Dr. Allen’s addendum report 

and indicate whether it had established an increased percentage of permanent impairment. In a 

report dated September 6, 2017, the DMA characterized Dr. Allen’s report as confusing, as he 

provided sets of range of motion measurements in and out of brackets. He noted that he could not 

perform “final calculations” until OWCP ascertained if Dr. Allen had performed three sets of range 

of motion measurements as required by the A.M.A., Guides.

By decision dated September 13, 2017, OWCP denied modification of its prior decision, 

finding that the additional medical evidence submitted had not demonstrated a greater percentage 

of permanent impairment than that which was previously awarded. It noted that, if appellant 

wished to claim an increased schedule award, he should request that Dr. Allen submit additional 

information regarding right ankle motion as described by the DMA. 

On May 1, 2018 appellant, through counsel, requested reconsideration, contending that the 

DMA had misapplied the A.M.A., Guides, that OWCP should have accorded Dr. Allen’s opinion
4

the weight of the medical evidence, and that referral to a DMA was unnecessary as Dr. Allen’s 

reports were clear and correct. She submitted an October 11, 2017 addendum report by Dr. Allen, 

in which he clarified that he obtained three trials of all range of motion measurements. Dr. Allen 

contended that the DMA had misread his measurement of 5 degrees inversion, a moderate deficit, 

as 10 degrees, a mild deficit. He explained that during the August 4, 2016 examination of 

appellant’s right ankle, he had observed -10 degrees dorsiflexion, 45 degrees plantar flexion, 5 

degrees inversion, and 10 degrees eversion. Dr. Allen noted that he had based his impairment 

rating on a diagnosis-based impairment (DBI) of tibial plafond fracture with moderate motion 

deficits, based on imaging studies from the date of injury, and a moderate motion deficit of 5 

degrees inversion. He concluded that appellant had 22 percent permanent impairment of the right 

lower extremity.

On July 30, 2018 OWCP requested that the DMA review Dr. Allen’s October 11, 2017 

addendum report and indicate whether it had established an increased percentage of permanent 

impairment. In a report dated August 7, 2018, the DMA explained that he selected the DBI rating 

method as it resulted in 12 percent permanent impairment, whereas the ROM method yielded 7 

percent permanent impairment. He explained that Dr. Allen had misapplied the A.M.A., Guides 

as he misclassified “mild” motion deficits at class 1, row 2 of Table 16-2 as a “moderate,” class 2 

impairment. The DMA explained that Dr. Allen’s calculation of a grade C impairment required 

inclusion of a GMCS of 3, although no grade modifier was warranted as clinical studies had been 

used to determine the correct diagnostic class. He found a grade D impairment based on a GMFH

of 1 and GMPE of 2. The DMA confirmed his prior finding of 12 percent permanent impairment 

of the right lower extremity.

By decision dated August 13, 2018, OWCP denied modification of its prior decision, 

finding that the additional medical evidence submitted had not demonstrated a greater percentage 

of permanent impairment than that previously awarded. It found that the opinion of the DMA 

remained controlling as Dr. Allen had misapplied the A.M.A., Guides.

LEGAL PRECEDENT

The schedule award provisions of FECA6and its implementing regulations7set 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. For 

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted 

 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404.
5

the A.M.A., Guides as the uniform standard applicable to all claimants.8 As of May 1, 2009, the

sixth edition of the A.M.A., Guides is used to calculate schedule awards.9

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).10 Under the sixth edition, for lower extremity impairments the evaluator identifies the 

impairment of the class of diagnosis (CDX) condition, which is then adjusted by grade modifiers 

of GMFH, GMPE, and GMCS.11 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) 

+ (GMCS-CDX).12

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

should be routed to an OWCP DMA for an opinion concerning the nature and percentage of 

impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser 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 12 

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

schedule award compensation. 

In support of his claim for a schedule award appellant submitted an August 4, 2016 report 

from Dr. Allen, who opined that appellant had 22 percent permanent impairment of the right lower 

extremity due to his right tibial plafond and lateral malleolus fractures. He reviewed medical 

records and the history of the employment injury. Dr. Allen also provided examination findings 

and noted that appellant had reached MMI. He referenced Table 16-2 of the A.M.A., Guides 

(ankle grid), under ankle fracture/dislocation.14 Dr. Allen also provided July 13 and October 11, 

2017 addendum reports clarifying his range of motion measurements. 

Dr. Slutsky, a DMA, reviewed Dr. Allen’s impairment rating and disagreed with his 

assessment. In his August 7, 2018 report, he explained that Dr. Allen made an error when he rated 

mild right ankle motion deficits as moderate, which caused his impairment classification of class 

 

8

Id. at § 10.404(a); see also Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

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

2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

10 A.M.A., Guides, supra note 5 at page 3, section 1.3, The International Classification of Functioning, Disability 

and Health (ICF): A Contemporary Model of Disablement. 

11 Id. at 493-556. 

12 Id. at 521.

13 M.J., Docket No. 17-1776 (issued December 19, 2018); P.R., Docket No. 18-0022 (issued April 9, 2018). See

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

2.808.5 (March 2017).

14 A.M.A., Guides, supra note 5 at 503.
6

2 to be in error. The DMA further explained that Dr. Allen should not have included an adjustment 

for clinical studies as the imaging studies of record had already been used to determine the correct 

diagnostic class. The grade C impairment classification was thus in error.

The DMA reviewed the case record and determined that appellant had 12 percent 

impairment of the right lower extremity. He determined that appellant had attained MMI as of 

August 4, 2016, the date of Dr. Allen’s examination. The DMA explained that appellant had a 

class 1, row 2 DBI impairment for mild right ankle motion deficits, with a grade D impairment 

based on a functional history adjustment of 1 for an AAOS lower limb questionnaire score of 66, 

and a physical examination adjustment of 2 for tenderness and crepitation. These deficits equaled 

12 percent permanent impairment of the right lower extremity. 

The Board finds that the weight of the medical evidence rests with the opinion of the DMA, 

as he provided the only impairment rating that properly applied the sixth edition of the A.M.A., 

Guides. The DMA appropriately applied the sixth edition of the A.M.A., Guides in determining 

that appellant had 12 percent permanent impairment of the right lower extremity.15 The record 

does not contain any other medical evidence in conformance with the sixth edition of the A.M.A., 

Guides establishing greater than the 12 percent permanent impairment of the right lower extremity 

previously awarded.16

On appeal counsel reiterates arguments made in support of the May 1, 2018 request for 

reconsideration. As explained above, OWCP properly accorded the DMA the weight of the 

medical evidence as Dr. Allen had misapplied the A.M.A., Guides.

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 12 

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

schedule award compensation. 

 

15 M.J., supra note 13; M.C., Docket No. 15-1757 (issued March 17, 2016). In both cases, the only medical evidence 

that demonstrated a proper application of the A.M.A., Guides was the report of the medical adviser).

16 A.M.A., Guides 516.
7

ORDER

IT IS HEREBY ORDERED THAT the August 13, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 28, 2019

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