United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Santa Ana, CA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-1614

Issued: March 25, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 22, 2018 appellant filed a timely appeal from an August 9, 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 a permanent 

impairment of his right lower extremity entitling him to a schedule award.

FACTUAL HISTORY

On December 16, 2006 appellant, then a 48-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on December 15, 2006 he sustained a right foot fracture when his 

foot was squeezed, twisted, and bent between a powered pallet jack and a very heavy stationary 

 

1 5 U.S.C. § 8101 et seq.
2

all-purpose container while in the performance of duty. On August 19, 2008 OWCP accepted the 

claim for fracture of the right dorsal mid foot.

On February 2, 2018 appellant filed a claim for a schedule award (Form CA-7).

In support of his claim, appellant submitted a July 12, 2007 medical report from Dr. David 

Chang, a Board-certified orthopedic surgeon. Dr. Chang provided findings on physical 

examination and reviewed diagnostic testing. He reported that a December 26, 2006 computerized 

tomography (CT) scan of the right foot revealed multiple chip fractures of the dorsal mid-foot. 

Dr. Chang noted no evidence of subluxation, dislocation, or ligamentous injury. He further 

reported that a January 15, 2007 magnetic resonance imaging (MRI) scan of the right foot 

demonstrated no evidence of acute fractures or dislocation. However, Dr. Chang explained that 

the MRI scan was relatively insensitive for detection of subtle fractures and if indicated, a CT scan 

could be obtained. He further noted that the MRI scan revealed areas of subtle marrow edema 

seen involving the cuboid fourth metatarsal articulation, as well as the navicular bone. Dr. Chang 

opined that these findings could represent areas of stress reaction, degenerative changes, or 

contusion. He diagnosed stable right dorsal mid-foot fractures and reported that appellant 

sustained two percent whole person impairment as a result of his injury. 

By development letter dated February 12, 2018, OWCP requested that appellant submit an 

impairment evaluation from his attending physician, based on a current medical evaluation, which 

provides a narrative discussion as to the calculation of permanent impairment pursuant to the sixth 

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

(A.M.A., Guides).

2

 It noted that it had received Dr. Chang’s July 12, 2007 report which was 

insufficient to support appellant’s claim because the impairment rating was not based on a current 

examination. OWCP afforded appellant 30 days to submit the requested impairment evaluation. 

In a March 24, 2018 report, Sebastian Juarado, a physical therapist, provided range of 

motion (ROM) measurements of appellant’s feet and ankles in accordance with the sixth edition 

of the A.M.A., Guides.

By decision dated June 11, 2018, OWCP denied appellant’s claim for a schedule award 

finding that the evidence submitted was insufficient to establish permanent impairment of his right 

lower extremity. It noted that he had not provided an impairment rating from a physician based 

upon a current examination. 

On June 19, 2018 appellant requested reconsideration. In support of his claim, he 

submitted a March 16, 2018 MRI scan of the right foot from Dr. Eric Chen, a Board-certified 

diagnostic radiologist. 

Appellant also submitted a March 24, 2018 permanent impairment evaluation from

Dr. Charles Xeller, a Board-certified orthopedic surgeon. Dr. Xeller discussed appellant’s 

employment duties as a mail handler for the employing establishment since 1987. He reported

that, on December 15, 2006, appellant injured his right foot when he was lifting a pallet of mail 

using a forklift and his foot got caught between the forklift and another all-purpose container.

 

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

Dr. Xeller reported that appellant was taken off work for six weeks and was casted. Appellant 

sought treatment for his condition with Dr. Chang through 2010. Dr. Xeller reported that current

x-rays showed arthritic degeneration throughout his mid-foot in the metatarsal tarsal area, as well 

as involvement of his cuboid extending into the articulation with the navicular bone in his foot. 

He noted no flat footedness. Dr. Xeller diagnosed right fracture of foot, phalanx closed. 

Dr. Xeller determined that appellant’s right lower extremity impairment would be rated 

based on a diagnosis of arthritic degeneration as demonstrated on the x-ray and MRI scan. Using 

Table 16-2, Foot and Ankle Regional Grid, of the sixth edition of the A.M.A., Guides, he

diagnosed class 1 cuboid arthritic generation with one millimeter of remaining cartilage at a grade 

C default value of five percent.3 Dr. Xeller reported that the clinical studies via appellant’s right 

foot x-ray and MRI scan revealed arthritis, that the functional history showed avoidance of impact 

loading, difficulty running, and pain with use of foot, and that the physical examination revealed 

no overt deformity of the foot. He opined that the grade modifiers did not warrant adjustment of 

the default impairment value, resulting in five percent permanent impairment of the right lower 

extremity.

On July 18, 2018 OWCP routed Dr. Xeller’s report, a statement of accepted facts (SOAF), 

and the case file to Dr. Ari Kaz, a Board-certified orthopedic surgeon serving as an OWCP district 

medical adviser (DMA), for review and determination regarding whether appellant sustained a 

permanent impairment and the date of maximum medical improvement (MMI) pursuant to the

A.M.A., Guides.

In a July 29, 2018 medical report, Dr. Kaz reviewed the case file and disagreed with

Dr. Xeller’s impairment rating and diagnosis for calcaneal cuboid arthritic changes. The DMA

noted that the March 16, 2018 right foot MRI scan failed to establish significant arthritic changes. 

He differed with Dr. Xeller’s interpretation of the March 16, 2018 study and also noted that the 

radiologist had provided contradictory interpretations of the MRI scan. Dr. Kaz indicated that, if 

there was arthritis significant enough to cause joint space narrowing, one would expect to see 

marrow edema, subcortical cysts, or some other identifiable bony or cartilage pathology by the 

MRI scan. However, the MRI scan report indicated minimal mid-foot arthrosis and no marrow 

edema. Dr. Xeller reported that current x-rays of the right foot showed arthritic degeneration 

throughout the mid-foot in the metatarsal tarsal area, as well as involvement of his cuboid 

extending into the articulation with the navicular bone in his foot. Dr. Kaz noted that the MRI 

scan findings revealed no arthritic changes and contradicted Dr. Xeller’s interpretation of the x-ray 

reports. He indicated that MRI scan testing was more sensitive for joint space narrowing and 

arthritic changes than seen on plain x-rays, and should thus carry more weight as support for no 

significant arthritic changes. 

Dr. Kaz further explained that Dr. Xeller had failed to adequately assign grade modifiers 

when assessing permanent impairment. He noted that because the MRI scan revealed minimal 

mid-foot arthrosis and did not document a loss of cartilage interval, appellant had no permanent 

impairment of the right foot.

 

3

Id. at 507, Table 16-2.
4

Dr. Kaz further opined that regardless of the diagnosis chosen in Table 16-2, a normal 

cartilage interval resulted in zero percent permanent impairment.4 He reported that there was also 

no impairment to the right foot using the ROM methodology. Dr. Kaz noted that the only observed 

abnormality of the right lower extremity was seven degrees of ankle dorsiflexion.5 However, the 

uninjured left side also measured seven degrees of ankle dorsiflexion. Dr. Kaz explained that the 

A.M.A., Guides provide that, if the contralateral joint is uninjured, it may serve as defining normal 

for the individual.6 He reported that seven degrees of dorsiflexion was symmetric bilaterally, 

indicating normal results and no ratable impairment based for a loss of ROM. Dr. Kaz concluded 

that MMI had been reached on March 24, 2018, the date of Dr. Xeller’s examination. 

By decision dated August 9, 2018, OWCP denied modification of the June 11, 2018 

decision denying appellant’s claim for a schedule award. It found that the medical evidence of 

record established zero percent permanent impairment as a result of the December 15, 2006 work 

injury.

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.7 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. 

Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.8 

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

of the A.M.A., Guides (2009).9 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.10

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 

 

4

Id. at 501, Table 16-2.

5

Id. at 549, Table 16-20 and Table 16-22.

6

Id. at 544.

7 5 U.S.C. § 8107; 20 C.F.R. § 10.404.

8 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

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

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.6a (March 2017).

10 Isidoro Rivera, 12 ECAB 348 (1961).
5

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

impairment specified.11

FECA provides that, if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an examination.12 

For a conflict to arise, the opposing physicians’ viewpoints must be of “virtually equal weight and 

rationale.”

13

ANALYSIS

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

OWCP accepted appellant’s claim for right dorsal mid-foot fracture as a result of his 

December 15, 2006 employment injury. In support of his claim for a schedule award, appellant 

submitted a March 24, 2018 impairment evaluation from Dr. Xeller, a Board-certified orthopedic 

surgeon. Dr. Xeller calculated five percent permanent impairment of the right lower extremity 

based on a class 1 diagnosis of cuboid arthritic degeneration with one millimeter of remaining 

cartilage.14 He noted that appellant’s current right foot x-ray revealed arthritic degeneration 

throughout the mid foot in the metatarsal tarsal area, as well as involvement of his cuboid 

extending into the articulation with the navicular bone in his foot. Dr. Xeller determined that 

appellant’s permanent impairment should be rated based on the diagnosis of arthritic degeneration 

which was supported by both x-ray and MRI scan of the right foot. The record also reflects that 

an earlier January 15, 2007 MRI scan as interpreted in Dr. Chang’s July 12, 2007 report supports

Dr. Xeller’s findings and assessment. 

Dr. Kaz, serving as a DMA, reviewed Dr. Xeller’s report and disagreed with his findings 

pertaining to arthritic changes of the right foot. He observed that the radiologist provided 

contradictory interpretations of the March 24, 2018 right foot MRI scan. Dr. Kaz noted that, if 

there was arthritis sufficiently significant to cause joint space narrowing, one would expect to see 

marrow edema, subcortical cysts, or some other identifiable bony or cartilage pathology by the 

MRI scan. However, the radiologist indicated minimal mid-foot arthrosis and no marrow edema. 

Dr. Kaz further noted that Dr. Xeller’s x-ray findings of cuboid arthritic degeneration was 

contradicted by the MRI scan which revealed minimal mid-foot arthrosis. He noted that the

findings of the MRI scan should carry more weight as it was more sensitive for joint space 

narrowing and arthritic changes than seen on plain x-rays. Dr. Kaz noted that there were no 

arthritic changes and opined that regardless of the diagnosis chosen for use in Table 16-2, a normal 

 

11 See supra note 9 at Chapter 2.808.6(e) (March 2017).

12 5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

13 C.H., Docket No. 18-1065 (issued November 29, 2018).

14 Supra note 3.
6

cartilage interval qualified for zero percent permanent impairment.15 He further reported that the 

ROM method also failed to establish a ratable permanent impairment to the right lower extremity. 

The Board finds that there remains an unresolved conflict in the medical evidence between

Dr. Xeller, appellant’s treating physician, and Dr. Kaz, the DMA, regarding whether appellant’s 

diagnostic testing revealed arthritic changes for consideration of his right lower extremity

impairment.

16

OWCP procedures provide that impairment ratings for schedule awards include those 

conditions accepted by OWCP as employment related and any preexisting permanent impairment 

of the same member or function.17 If the work-related injury has affected the residual usefulness 

in whole or in part, a schedule award may be appropriate as there is no apportionment.18 As there 

is an unresolved conflict in the medical evidence regarding whether appellant has established 

permanent impairment of the right lower extremity, the case must be remanded to OWCP for 

referral to an impartial medical specialist for resolution of the conflict in accordance with 5 U.S.C. 

§ 8123(a).19

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

refer appellant and the case file to an impartial medical examiner (IME) to properly determine the 

extent of permanent impairment of the right lower extremity based on a current examination, the 

accepted employment injury, and use the proper tables and figures of the A.M.A., Guides.

20

 It

should instruct the IME to discuss the findings of the diagnostic studies and whether they 

demonstrate arthritic changes as a result of the accepted right dorsal mid-foot fracture. After such 

further development as OWCP deems necessary, it shall issue a de novo decision. 

CONCLUSION

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

 

15 Supra note 4.

16 P.E., Docket No. 17-0961 (issued March 14, 2018).

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

18 B.K., 59 ECAB 228 (2007). See also supra note 9 at Chapter 2.808.5(d) (March 2017) (schedule awards may 

include preexisting impairments as there is no apportionment under FECA).

19 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).

20 G.W., Docket No. 17-0957 (issued June 19, 2017).
7

ORDER

IT IS HEREBY ORDERED THAT the August 9, 2018 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 25, 2019

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