United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.W., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PATROL, 

Spokane, WA, Employer

__________________________________________

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Docket No. 19-1720

Issued: November 25, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 12, 2019 appellant filed a timely appeal from a July 1, 2019 merit decision of 

the Office of Workers’ Compensation Programs (OWCP).1 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 The Board notes that, following the July 1, 2019 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 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish greater than seven 

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

schedule award.

FACTUAL HISTORY

On August 7, 2017 appellant, then a 34-year-old border patrol agent, filed a traumatic 

injury claim (Form CA-1) alleging that on August 4, 2017 he sustained two fractures of his left 

ankle, deep bruising to his right heel, multiple stitches in his chin, sore teeth and gums, as well as 

contusions to his chest when the relief valve on a high pressure scuba tank that he was using failed 

to deploy and exploded while in the performance of duty.

Appellant underwent left ankle surgery including left talus open reduction and internal 

fixation with medial malleolar osteotomy to repair a left ankle comminuted talar neck fracture on 

August 5, 2017.

On September 22, 2017 OWCP accepted appellant’s claim for left foot fracture and 

surgery. On February 14, 2018 it expanded acceptance of his claim to include the additional 

conditions of displaced fracture of the neck of the left talus, open wound of the scalp, and fractures 

of his teeth at 2, 3, 15, 18, and 31.

Appellant underwent a second left ankle arthroscopy for lysis of adhesions, major 

synovectomy, and hardware removal on September 26, 2018.

On March 26, 2019 Dr. Miguel A. Schmitz, an attending orthopedic surgeon, provided 

measurements of appellant’s range of motion (ROM) of the left lower extremity including 10 

degrees of dorsiflexion, 40 degrees of plantar flexion, 5 degrees of inversion, and 0 degrees of 

eversion. He described appellant’s left ankle as stiff. Dr. Schmitz noted that appellant’s left talus 

fracture was healed and that he had some postoperative pain associated with this condition which 

impacted his ability to run and walk at a typical pace.

In a report dated March 27, 2019, Dr. Schmitz found that appellant had reached maximum 

medical improvement (MMI) on March 26, 2019. He described appellant’s surgeries and provided 

an impairment rating based on the sixth edition of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (A.M.A., Guides).3 Dr. Schmitz utilized Table 16-2, 

page 503, for a diagnosis of talus fracture with a class of diagnosis (CDX) of grade 1, with a default 

value of 5 for nondisplaced talus fracture with minimal findings. He found mild motion deficits, 

but no malalignment and no avascular necrosis. Dr. Schmitz further found grade modifier for 

function history (GMFH) of one in accordance with Table 16-6, page 516. He found a grade 

modifier for physical examination (GMPE) of zero as appellant had good range of motion and no 

arthrodesis. Dr. Schmitz reported a grade modifier for clinical studies (GMCS) of zero based on 

Table 16-8, page 519, as no radiographs had identified stability nonunion or arthrodesis. In 

applying the net adjustment formula, he found that appellant had a net adjustment of -2. 

 

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

Dr. Schmitz then determined that appellant had mild motion deficits and/or mild malalignment, 

avascular necrosis without talar body collapse. He calculated a final rating of seven percent 

permanent impairment of the left lower extremity in accordance with Table 16-2, page 503 of the

A.M.A., Guides.

On April 15, 2019 appellant filed a schedule award claim (Form CA-7).

OWCP referred Dr. Schmitz’ rating report to a district medical adviser (DMA). In a report 

dated April 28, 2019, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as the

DMA, reviewed the medical evidence of record and diagnosed status post open reduction and 

internal fixation of the left talus open fracture. He concurred with Dr. Schmitz that appellant had 

seven percent permanent impairment of his left lower extremity based on the diagnosis of a left 

talus fracture in accordance with Table 16-2, page 503 of the A.M.A., Guides. The DMA further 

found that appellant’s diagnosed condition did not meet the criteria to allow impairment to be 

calculated by the ROM methodology as set forth in section 16.7, page 543, of the A.M.A., Guides. 

He concluded that appellant reached MMI on March 26, 2019.

By decision dated July 1, 2019, OWCP granted appellant a schedule award for seven 

percent permanent impairment of his left lower extremity.

LEGAL PRECEDENT

The schedule award provisions of FECA,4and its implementing federal regulations,

5

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. 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.

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 

 

4 Supra note 2

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 Award and Permanent Disability Claims, 

Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).

7 X.Y., Docket No. 19-1290 (issued January 24, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro 

Rivera, 12 ECAB 348 (1961).
4

and Health (ICF).8 Under the sixth edition, the evaluator identifies the CDX, which is then 

adjusted by grade modifiers of GMFH, GMPE, and GMCS.9 The net adjustment formula is 

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

for their impairment choices, including the 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 impairment in 

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

impairment specified.12

ANALYSIS

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

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

a schedule award.

In March 26 and 27, 2019 reports, Dr. Schmitz provided physical examination findings and 

provided a rating of permanent impairment based upon the sixth edition of the A.M.A., Guides. 

He indicated that appellant had a CDX of 1 for the diagnosis of a talus fracture with an initial grade 

C or five percent permanent impairment. Dr. Schmitz then applied the net adjustment formula,

and increased the value rating to seven percent permanent impairment of the left lower extremity. 

Consistent with its procedures,13 OWCP properly referred the matter to a DMA for an 

opinion regarding appellant’s permanent impairment in accordance with the sixth edition of the 

A.M.A., Guides.

14

In April 28, 2019 report, Dr. Harris, serving as the DMA, identified the diagnosis for the 

left lower extremity as fracture of the talus in accordance with Table 16-2, page 503, of the A.M.A., 

Guides. He found that appellant had seven percent permanent impairment of the left lower 

extremity due to the accepted employment injury, concurring with Dr. Schmitz’ impairment rating.

The Board finds that the DMA applied the appropriate tables and grading schemes of the 

A.M.A., Guides to Dr. Schmitz’ clinical findings and properly calculated seven percent permanent 

impairment of appellant’s left lower extremity. As there is no medical evidence of record in 

 

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. 411.

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

12 Supra note 6 at Chapter 2.808.6(f) (March 2017).

13 Id.

14 X.Y., supra note 7; J.J., Docket No. 18-1615 (issued March 5, 2019).
5

conformance with the sixth edition of the A.M.A., Guides, establishing that appellant has greater 

than the seven percent permanent impairment of his left lower extremity previously awarded, the 

Board finds that appellant has not met his burden of proof to establish that he is entitled to 

additional schedule award compensation.

15

Appellant may request a schedule award or an 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 greater than 

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

a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the July 1, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: November 25, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

15 S.C., Docket No. 19-1177 (issued August 27, 2020); J.H., Docket No. 19-0395 (issued August 10 2020); D.D., 

Docket No. 19-1676 (issued July 29, 2020).