United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.J., Appellant

and

U.S. POSTAL SERVICE, CHICAGO 

INTERNATIONAL SERVICE CENTER, 

Chicago, IL, Employer

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Docket No. 19-0901

Issued: December 6, 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

JANICE B. ASKIN, Judge

JURISDICTION

On March 26, 2019 appellant filed a timely appeal from an October 17, 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the October 17, 2018 decision, OWCP received additional evidence. 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

ISSUE

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

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

schedule award.

FACTUAL HISTORY

On October 14, 2017 appellant, then a 45-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on October 11, 2017 a bulk mail center (BMC) loader (forklift) 

struck his left toe while in the performance of duty. He stopped work on October 14, 2017. On 

November 8, 2017 appellant underwent an open reduction internal fixation left hallux fracture, 

which was performed by Dr. Jonathan L. Hook, a podiatrist specializing in orthopedic surgery. 

OWCP accepted the claim for commuted, displaced, closed fracture of left hallux. OWCP paid 

appellant wage-loss compensation on the supplemental rolls from November 28, 2017 through 

January 14, 2018.

On January 28, 2018 appellant filed a claim for a schedule award (Form CA-7).

In a development letter dated January 30, 2018, OWCP noted that the medical evidence of 

record did not indicate that appellant’s condition had reached maximum medical improvement

(MMI). It informed him of the requirements necessary to establish a schedule award and requested 

that he submit a permanent impairment evaluation from his attending physician in accordance with 

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

Impairment (A.M.A., Guides)

3 when his condition reached MMI. 

In a February 9, 2018 report, Dr. Hook indicated that appellant still had some residual 

stiffness, but minimal pain. He related that appellant had returned to work, but had difficulty 

utilizing heavy standing machinery. Dr. Hook described appellant’s physical examination 

findings which included moderate edema at the left hallux, and limited range of motion at the 

hallux interphalangeal joint. 

On February 23, 2018 appellant informed OWCP that Dr. Hook was unwilling to provide 

a permanent impairment rating. 

OWCP subsequently referred appellant to Dr. James Elmes, a Board-certified orthopedic 

surgeon, for a second opinion permanent impairment evaluation. In a May 10, 2018 report,

Dr. Elmes reviewed a Statement of Accepted Facts (SOAF) and the medical record. Appellant’s 

physical examination demonstrated diminished sensation of the left great toe interphalangeal joint 

(IP) with normal metacarpophalangeal (MP) joint motion with normal gait mechanics. Dr. Elmes 

opined that appellant reached MMI on February 9, 2018, when Dr. Hook last evaluated him. 

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

4 he opined that appellant 

had five percent left lower extremity impairment based on the diagnosed-based impairment (DBI) 

 

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

4

Id. at 505. 
3

method. For the diagnosis of fractured phalanx, he opined that appellant had a class of diagnosis 

(CDX) of 1 with default lower extremity impairment value of five percent. Dr. Elmes assigned a 

functional history grade modifier (GMFH) of 1 under Table 16-6 as appellant reported discomfort 

following long periods of walking, long-standing, squatting, and stairs, but was doing his normal 

work activity satisfactory. He assigned a physical examination grade modifier (GMPE) of 1 under 

Table 16-7 as there was mild-to-moderate decreased range of motion with 10 degrees active flexion 

and 40 degrees active IP flexion on the right. Dr. Elmes found clinical studies grade modifier 

(GMCS) not applicable as x-rays were used to establish the diagnosis. Utilizing the net adjustment 

formula, Dr. Elmes found 0 net adjustment, which provided a final lower extremity impairment 

value of five percent. He indicated that the A.M.A, Guides did not allow for an alternative range 

of motion (ROM) impairment rating as the diagnosis in the particular regional grid was not 

followed by an asterisk. 

On June 5, 2018 OWCP routed a SOAF and Dr. Elmes’ report to Dr. Arthur S. Harris, a 

Board-certified orthopedic surgeon serving as a District Medical Adviser (DMA). In a June 7, 

2018 report, the DMA concurred with Dr. Elmes’ DBI impairment calculations that appellant had 

five percent left lower extremity impairment for fracture of the left hallux (great toe) proximal 

phalanx under Table 16-2. He also agreed that impairment could not be calculated by the ROM 

method as there was no asterisk next to the diagnosis under Table 16-2. The DMA, however, 

opined that appellant reached MMI on May 10, 2018, when Dr. Elmes conducted his permanent 

impairment evaluation. He noted that the case file did not contain medical records that documented 

MMI on February 9, 2018 or any time prior to Dr. Elmes’ May 10, 2018 impairment evaluation. 

On July 10, 2018 OWCP requested that Dr. Elmes clarify his impairment rating for the left 

lower extremity as it appeared to be based only on appellant’s left great toe. In a September 2, 

2018 addendum, Dr. Elmes explained that Table 16-2 did not provide an option for an impairment 

rating of the toe alone.

By decision dated October 17, 2018, OWCP granted appellant a schedule award for five

percent permanent impairment of the left lower extremity, finding that the weight of the medical 

evidence rested with the DMA, who correctly applied the A.M.A., Guides to Dr. Elmes’ May 10,

2018 examination findings. The date of MMI was found to be May 10, 2018. The award covered 

a period of 14.4 weeks from May 10 through August 18, 2018. 

LEGAL PRECEDENT

The schedule award provisions 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.5 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 

 

5 5 U.S.C. § 8107; 20 C.F.R. § 10.404.
4

standard for evaluating schedule losses.6 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).7 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.8

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. With respect to the toe, the relevant portion of the foot for the present case, reference 

is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501.

9

 After the CDX 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).10 Under Chapter 2.3, 

evaluators are directed to provide reasons for their impairment rating choices, including choices 

of diagnoses from regional grids and calculations of modifier scores.11

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 permanent 

impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale 

for the percentage of impairment specified.12

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish more than five 

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

schedule award.

As appellant was unable to obtain an impairment rating from his treating physician,

Dr. Hook, OWCP referred appellant to Dr. Elmes for a second opinion permanent impairment 

evaluation. In his May 10, 2018 report, Dr. Elmes calculated five percent permanent impairment 

of the left lower extremity for appellant’s accepted left big toe condition based on DBI 

methodology using the formulas set forth above. He indicated that ROM impairment methodology 

was not an option under the A.M.A., Guides, as Table 16-2 did not allow the ROM methodology 

 

6 20 C.F.R. § 10.404; S.J., Docket No. 19-0623 (issued October 28, 2019); see also Ronald R. Kraynak, 53 ECAB 

130 (2001). 

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

Chapter 2.808.6a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 

3.700, Exhibit 1 (January 2010).

8 See G.S., Docket No. 19-0277 (issued August 22, 2019).

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

10 Id. at 515-22

11 Id. at 23-28.

12 See supra note 7 at Chapter 2.808.6(e) (March 2017).
5

be used as an alternative rating method.

13

 Dr. Elmes provided clinical findings and explained how 

those objective elements warranted the percentage assessed. He further explained, in a 

September 2, 2018 addendum, that the A.M.A., Guides did not provide an option for impairment 

rating of the toe alone, but rather was ratable under Table 16-2, the Foot and Ankle Regional 

Grid.14

OWCP’s DMA, Dr. Harris, concurred with Dr. Elmes’ five percent left lower extremity 

permanent impairment rating and methodology, noting that the ROM impairment methodology 

was not an option in this case. He differed on the date MMI was reached finding instead that it 

occurred on May 10, 2018, the date of Dr. Elmes’ impairment evaluation.

The Board finds that OWCP properly found that the impairment ratings by the DMA 

constituted the weight of the medical evidence.15 Dr. Elmes’ opinion was based on an accurate 

SOAF and the complete medical record. He provided a thorough impairment rating, utilizing the 

appropriate portions of the A.M.A., Guides. Dr. Elmes’ described how the objective clinical 

findings and physical examination warranted the specified percentage of impairment. As noted, 

the DMA concurred with Dr. Elmes’ five percent left lower extremity permanent impairment 

rating and methodology. There is no probative medical evidence of record demonstrating greater 

impairment than that previously awarded.16 

The Board further finds that the DMA properly assigned the date of MMI. A schedule 

award is appropriate where the physical condition of an injured member has stabilized, despite the 

possibility of an eventual change in the degree of functional impairment in the member.17 It is 

well established that the period covered by a schedule award commences on the date that the 

employee reaches MMI from the residuals of the employment injury. The Board has defined MMI

as meaning that the physical condition of the injured member of the body has stabilized and will 

not improve further. The question of when MMI has been reached is a factual one that depends 

upon the medical findings in the record. The determination of such date is to be made in each case 

upon the basis of the medical evidence in that case.18 The date of MMI is usually considered to 

be the date of the medical examination that determined the extent of the impairment.19 While

Dr. Elmes’ had noted February 9, 2018 to be the date of MMI, the DMA properly found, based on 

the medical record, that the date of MMI was May 10, 2018, the date of Dr. Elmes’ evaluation. 

 

13 See A.M.A., Guides 543; see also A.R., Docket No. 19-0250 (issued May 6, 2019). 

14 J.M., Docket No. 13-0299 (issued May 8, 2013). 

15 J.H., Docket No. 18-1207 (issued June 20, 2019).

16 See J.M., Docket No. 18-1334 (issued March 7, 2019).

17 See T.C., Docket No. 17-1906 (issued May 25, 2018).

18 C.R., Docket No. 17-1872 (issued March 8, 2018); Peter C. Belkind, 56 ECAB 580 (2005); Marie J. Born, 27 

ECAB 623 (1976).

19 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3 (January 2010).
6

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 five 

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

schedule award.

ORDER

IT IS HEREBY ORDERED THAT the October 17, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 6, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board