United States Department of Labor

Employees’ Compensation Appeals Board

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J.G., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, Pollock, LA, Employer

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Docket No. 19-0369

Issued: June 11, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 10, 2018 appellant filed a timely appeal from a November 13, 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 greater than one 

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

schedule award compensation.

FACTUAL HISTORY

On June 19, 2015 appellant, then a 31-year-old materials handler supervisor, filed a 

traumatic injury claim (Form CA-1) alleging that on that date he twisted his right ankle and injured 

 

1 5 U.S.C. § 8101 et seq.
2

his right big toe and right Achilles tendon while in the performance of duty. He stopped work on 

June 19, 2015 and returned to modified work on July 31, 2015. OWCP accepted the claim for 

tenosynovitis of the right foot and ankle. 

A magnetic resonance imaging (MRI) scan of appellant’s right foot obtained on August 26, 

2015 revealed a fragmented sesamoid bone. 

On September 14, 2016 appellant filed a claim for a schedule award (Form CA-7). 

In a development letter dated October 17, 2016, OWCP advised appellant of the evidence 

needed to support his schedule award claim, including an impairment evaluation from his attending 

physician providing a rating in accordance with the sixth edition of the American Medical 

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

2

 It afforded 

him 30 days to provide additional evidence.

An occupational therapist provided an impairment rating dated December 1, 2016. 

Dr. Angela Mayeux-Herbert, a Board-certified orthopedic surgeon, cosigned the report on 

April 18, 2017. She discussed appellant’s complaints of mild right great toe discomfort and pain 

in his right foot with extensive standing. Dr. Mayeux-Herbert noted that he had resumed his usual 

work duties. She measured normal right ankle joint range of motion (ROM) and ROM of the right 

great toe of 30 to 0 at the metatarsalphalangeal (MTP) joint and 10 to 50 at the interphalangeal 

(IP) joint. Dr. Mayeux-Herbert advised that appellant had hyperextension of the right great toe “at 

the MTP joint with flexion at the IP joint.” She identified the class of diagnosis (CDX) as 1 

fragmented sesamoid bone with right great toe pain and a mild motion deficit, which she found 

yielded two percent impairment of the right lower extremity. Dr. Mayeux-Herbert applied grade 

modifiers of two for functional history (GMFH), one for physical examination (GMPE), and one 

for clinical studies (GMCS), noting that an MRI scan had verified the sesamoid bone 

fragmentation. She found no adjustment from the default value and opined that appellant had two 

percent right lower extremity impairment. 

On July 28, 2017 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as a 

district medical adviser (DMA), reviewed the findings of Dr. Mayeux-Herbert. He identified CDX

1 sesamoid fracture using the foot/ankle regional grid set forth at Table 16-2 on page 505 of the 

A.M.A., Guides, which yielded a default value of one percent. Dr. Katz modified Dr. MayeuxHerbert’s grade modifiers in accordance with Table 16-6 through Table 16-8, finding a GMFH of 

1, a GMPE of 1, and a GMCS of 2. He applied the net adjustment formula, (GMFH-CDX) + 

(GMPE-CDX) + (GMCS-CDX), or (1-1) + (1-1) + (2-1) to find a net “adjustment of one,” which 

yielded “two” percent impairment. Dr. Katz concluded that appellant had “one” percent 

permanent impairment of the right lower extremity and had reached maximum medical 

improvement on December 1, 2016.

In a letter dated October 24, 2017, OWCP requested that appellant’s attending physician 

review and comment on Dr. Katz’ findings. 

 

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

In a November 15, 2017 response, Dr. Mayeux-Herbert advised that her prior 

determination had not altered. She enclosed a February 8, 2017 report in which she reviewed 

appellant’s impairment rating and noted that he had two percent permanent impairment of the right 

lower extremity. 

By decision dated November 13, 2018, OWCP granted appellant a schedule award for one 

percent permanent impairment of the right lower extremity.3 The period of the award ran for 2.88 

weeks from December 1 to 21, 2016.

LEGAL PRECEDENT

The schedule award provisions of FECA,4and its implementing federal regulation,5set 

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. FECA, 

however, does not specify the manner in which the percentage loss of a member shall be 

determined. The method used in making such a determination is a matter which rests in the 

discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized 

the use of a single set of tables so that there may be uniform standards applicable to all claimants. 

OWCP evaluates the degree of permanent impairment according to the standards set forth in the 

specified edition of the A.M.A., Guides, published in 2009.6 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.7

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).8 Under the sixth edition, the evaluator identifies the impairment class of 

diagnosis (CDX), which is then adjusted by grade modifiers based on functional history (GMFH), 

physical examination (GMPE) and clinical studies (GMCS).9 The net adjustment formula is 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10 Evaluators are directed to provide reasons 

 

3 OWCP initially issued a schedule award decision on September 20, 2018; however, on November 13, 2018 it 

issued an amended schedule award decision.

4

Id.

5 20 C.F.R. § 10.404.

6 For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

7 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

8 A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health 

(ICF): A Contemporary Model of Disablement.

9

Id. at 494-531.

10 Id. at 411.
4

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

calculations of modifier scores.11

ANALYSIS

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

On December 1, 2016 Dr. Mayeux-Herbert measured ROM of the right ankle and right 

great toe and found that appellant had hyperextension of the right great toe at the MTP and IP joint 

with flexion. She used CDX 1 for a fractured sesamoid bone with abnormal examination findings 

of right great toe pain and mildly reduced motion. Dr. Mayeux-Herbert applied a GMFH of 2, a 

GMPE of 1, and a GMCS of 1, noting that the right foot MRI scan study verified the diagnosis of 

the seasmoid bone fragmentation. She concluded that appellant had two percent right lower 

extremity permanent impairment. In a supplemental report dated November 15, 2017,

Dr. Mayeux-Herbert advised that there were no changes from her prior findings. The Board notes 

that she utilized clinical studies to identify the diagnosis of a fractured seasmoid bone and also 

applied a GMCS in reaching her impairment determination. However, the A.M.A., Guides 

provides that a GMCS is not applicable when clinical studies are used to identify the diagnosis.12

On July 28, 2017 Dr. Michael M. Katz, a DMA, concurred with Dr. Mayeux-Herbert’s 

finding of CDX 1 for a seasmoid fracture according to Table 16-2 on page 505, which he found 

yielded a default value of one percent. He also agreed with her application of a GMPE of 1. 

Dr. Katz determined, however, that appellant had a GMFH of 1 rather than 2, and a GMCS of 2

rather than 1. He applied the net adjustment formula, (GMFH-CDX) + (GMPE-CDX) + 

(GMCS-CDX), or (1-1) + (1-1) + (2-1) to find a net adjustment of one, and a two percent 

permanent impairment.13 Again, however, the Board notes that if clinical studies is used to identify 

the diagnosis, it is not used as a grade modifier.14 Further, Dr. Katz has not explained his finding 

that appellant had a GMFH of one rather than two. OWCP’s procedures provide that if the medical 

evidence fails to provide rationale for the percentage of impairment specified, the claims examiner 

should request a clarifying report from the DMA.15 It should therefore request that its medical 

adviser clarify appellant’s impairment rating. After such further development as deemed 

necessary, it shall issue a de novo decision.

CONCLUSION

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

 

11 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011). 

12 A.M.A., Guides 500; see also P.A., Docket No. 17-0075 (issued April 10, 2017).

13 Dr. Katz concluded that appellant had one percent permanent impairment of the right lower extremity, however, 

this appears to be a typographical error.

14 See supra note 11; see also R.A., Docket No. 18-0499 (issued July 20, 2018).

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

2.808.6(f) (March 2017); see also W.G., Docket No. 17-1258 (issued July 12, 2018).
5

ORDER

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

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: June 11, 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