United States Department of Labor

Employees’ Compensation Appeals Board

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S.F., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Lompoc, CA, Employer

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Docket No. 19-0115

Issued: July 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On October 19, 2018 appellant filed a timely appeal from an August 7, 2018 merit decision 

and a September 12, 2018 nonmerit 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.2

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish more than 

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

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. Id.
2

schedule award; and (2) whether OWCP properly denied appellant’s request for reconsideration 

of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On May 20, 2016 appellant, then a 39-year-old supervisory detention and deportation 

officer, filed a traumatic injury claim (Form CA-1) alleging that, on May 19, 2016, he injured his 

left ankle and foot while in the performance of duty. He did not initially stop work. OWCP 

accepted the claim for left Achilles tendon strain and authorized surgical repair of left Achilles 

tendon with allograft, which was performed on June 13, 2016 by Dr. Steven W. Pearson, a Boardcertified orthopedic surgeon and appellant’s treating physician. 

On May 15, 2017 appellant filed a claim for a schedule award (Form CA-7). 

By letter dated May 16, 2017, OWCP requested that Dr. Pearson provide an opinion as to 

whether appellant had permanent impairment of his left lower extremity due to his accepted 

employment-related condition pursuant to the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3

In a June 14, 2017 report, Dr. Pearson opined that appellant had reached maximum medical 

improvement (MMI) of the left lower extremity on January 13, 2017. He provided findings on 

physical examination and indicated that appellant had full range of motion with slight weakness 

and slight calf atrophy and that he was unable to perform a single heel rise. Using Table 16-2, 

Foot and Ankle Regional Grid, of the A.M.A., Guides,4 Dr. Pearson opined that for the diagnosis 

of postoperative repair of ruptured Achilles tendon, appellant was class 0 with 0 percent whole 

person impairment as there were no significant objective abnormal finding of muscle or tendon 

injury when at MMI. He indicated that appellant’s weakness was expected to improve over time. 

On December 14, 2017 OWCP referred appellant for a second opinion evaluation with

Dr. Pearson, the same physician who served as his initial treating physician, for an impairment 

rating rendered according to the A.M.A., Guides. In a February 2, 2018 report, Dr. Pearson, based 

upon a review of medical evidence, a statement of accepted facts (SOAF), and physical 

examination, diagnosed status post reconstruction left Achilles tendon rupture with persistent 

tendinitis. He opined that MMI was reached on January 13, 2017, consistent with his opinion 

while serving as appellant’s treating physician. Using Table 16-2, Foot and Ankle Regional Grid, 

of the A.M.A., Guides, Dr. Pearson calculated one percent left lower extremity permanent 

impairment based on a class 1 diagnosis of Achilles tendon rupture with some palpatory findings. 

He assigned a grade modifier of 2 for physical examination (GMPE),5a grade modifier of 0 for 

 

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

4

Id. at 501, Table 16-2. 

5

Id. at 517, Table 16-7.
3

functional history (GMFH),6and a grade modifier of 0 for clinical studies (GMCS).

7

 Dr. Pearson 

reported that, following assignment of grade modifiers, application of the net adjustment formula 

resulted in a negative 1, which amounts to a grade B or 1 percent lower extremity impairment. He 

noted that this differed from his previous finding of zero percent lower extremity impairment, 

which he issued on June 14, 2017 as the treating physician, as appellant’s signs and symptoms had 

not resolved with time. Dr. Pearson also indicated that had no loss of range of motion. 

In an April 4, 2018 report, Dr. Todd Fellars, a Board-certified orthopedic surgeon acting 

as a district medical adviser (DMA), reviewed the medical evidence of record and concurred with

Dr. Pearson’s February 2, 2018 impairment rating of one percent left lower extremity permanent 

impairment based on a diagnosis of ruptured Achilles tendon. He opined, however, that MMI was 

reached on February 2, 2018, the date of Dr. Pearson’s most recent impairment rating. 

By decision dated August 7, 2018, OWCP granted appellant a schedule award for one 

percent permanent impairment of his left lower extremity. The award covered a period of 2.88 

weeks and ran from February 2 to 22, 2018.

On August 20, 2018 OWCP received appellant’s August 17, 2018 request for 

reconsideration. In support of his request, appellant submitted an undated narrative disagreeing 

with the impairment rating. He contended that he was never referred for an appropriate second 

opinion evaluation as Dr. Pearson was his treating physician. Appellant indicated that he had

continuing symptoms with his left lower extremity. He also felt that he had a greater permanent 

impairment of the left lower extremity as he had previously been granted a schedule award for five

percent permanent impairment of his right lower extremity, after less invasive surgery on his right 

Achilles tendon. Appellant also submitted a copy of a July 9, 2012 schedule award decision for 

five percent right lower extremity impairment for a September 7, 2011 injury under OWCP File 

No. xxxxxx141.

By decision dated September 12, 2018, OWCP denied appellant’s request for 

reconsideration of the merits of his claim. 

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA8and its implementing federal regulations,9set 

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. The Board 

has approved the use by OWCP of the A.M.A., Guides for the purpose of determining the 

 

6

Id. at 516, Table 16-6.

7

Id. at 519, Table 16-8.

8 5 U.S.C. § 8107.

9 20 C.F.R. § 10.404.
4

percentage loss of use of a member of the body for schedule award purposes.10 As of May 1, 2009, 

schedule awards are determined in accordance with the sixth edition of the A.M.A., Guides.

11

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).12 Under the sixth edition, the evaluator identifies the class of diagnosis (CDX) 

for the diagnosed condition, which is then adjusted by grade modifiers based on functional history 

(GMFH), physical examination (GMPE), and clinical studies (GMCS).13 The net adjustment 

formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).14 Evaluators are directed to provide 

reasons for their impairment rating choices, including the choices of diagnoses from regional grids 

and calculations of modifier scores.15

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

should be routed to a DMA for an opinion concerning the percentage of permanent impairment 

using the A.M.A., Guides.

16

ANALYSIS -- ISSUE 1

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

OWCP accepted appellant’s claim for left Achilles tendon strain. It approved surgery for 

left Achilles tendon with allograft, performed by treating physician Dr. Pearson, on June 13, 2016. 

Appellant subsequently filed a claim for a schedule award (Form CA-7) and submitted an 

impairment rating from his treating physician Dr. Pearson in which he calculated that appellant 

had zero percent permanent impairment of left lower extremity for postoperative repair of ruptured 

Achilles tendon. OWCP subsequently referred appellant to the same physician, Dr. Pearson, for a 

second opinion impairment evaluation. Dr. Pearson opined, in his capacity as a second opinion 

examiner, that appellant had one percent left lower extremity permanent impairment for Achilles 

tendon rupture with some palpatory findings. He opined that MMI was reached on 

January 13, 2017. A DMA reviewed the medical evidence of record and concurred with

Dr. Pearson’s second opinion impairment rating of one percent permanent impairment of the left 

 

10 See B.B., Docket No. 18-0782 (issued January 11, 2019); Isidoro Rivera, 12 ECAB 348 (1961).

11 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 2.808.6 (March 2017).

12 A.M.A., Guides, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A 

Contemporary Model of Disablement.

13 Id. at 521.

14 Id.

15 Id. at 23-28; see B.B., supra note 10; R.V., Docket No. 10-1827 (issued April 1, 2011).

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

2.808.6(f) (March 2017); see also E.B., Docket No. 18-1211 (issued February 27, 2019); L.R., Docket No. 14-0674 

(issued August 13, 2014); Frantz Ghassan, 57 ECAB 349 (2006).
5

lower extremity. By decision dated August 7, 2018, OWCP granted appellant a schedule award 

for one percent permanent impairment of the left lower extremity. 

The Board finds that Dr. Pearson served as both a treating physician and a second opinion 

examiner for OWCP. OWCP’s procedures provide that the attending/treating physician is the 

primary source of medical evidence in most cases and is expected to provide a rationalized medical 

opinion based on a complete medical and factual background in order to resolve any pending issues 

in a cases. Where the attending physician’s report does not meet the needs of OWCP, it may 

schedule a second opinion examination.17 The method for selecting second opinion physicians is 

flexible and the selection of the second opinion physician is generally conducted by a medical 

referral group that has contracted with OWCP to provide second opinion medical referrals or the 

use of the Medical Management application.18 The Board has cautioned, however, that, if a 

physician was previously associated with a case, the appearance of impropriety should have been 

avoided.19 Similarly, the Board has found that a treating physician cannot later serve as a DMA

to avoid an appearance of impropriety.20 

The Board finds that Dr. Pearson’s prior association with appellant creates an appearance 

of impropriety, as he performed appellant’s left Achilles tendon surgery and followed appellant as 

his treating physician less than one year before serving as OWCP’s second opinion examiner. 

On remand, OWCP should request a second opinion evaluation, from a different physician

who is not associated with appellant, to provide a reasoned opinion regarding the nature and extent

of appellant’s permanent impairment and date of MMI in accordance with the sixth edition of the 

A.M.A., Guides. Following this and such further development as deemed necessary, OWCP shall 

issue an appropriate merit decision on appellant’s schedule award claim. 

 

17 See Federal (FECA) Procedure Manual, Part 3 -- OWCP Directed Medical Examinations, Chapter 3.500.3 

(June 2015). 

18 Id. at Chapter 3.500.3(b)(2) and (3). 

19 T.N., Docket No. 15-0690 (issued November 1, 2016). See also J.S., Docket No. 16-1097 (issued 

December 5, 2016). The Board found that in selecting an impartial medical specialist OWCP will select a physician 

who is qualified in the appropriate medical specialty and who has no prior connection with the case.

20 See J.G., Docket No. 16-0328 (issued November 1, 2016); T.N., id. 
6

CONCLUSION

The Board finds that this case is not in posture for a decision.21 

ORDER

IT IS HEREBY ORDERED THAT the September 12 and August 7, 2018 decisions of 

the Office of Workers’ Compensation Programs are set aside and the case is remanded for further 

development consistent with this decision of the Board.

Issued: July 25, 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

 

21 The Board finds that it is unnecessary to address the second issue in this case or appellant’s arguments on appeal 

in view of the Board’s disposition of the first issue.