United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.B., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Aurora, CO, Employer

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Docket No. 20-0642

Issued: September 30, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On January 29, 2020 appellant, through counsel, filed a timely appeal from a December 26, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). 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

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

ISSUE

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

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

schedule award.

FACTUAL HISTORY

OWCP accepted that on August 14, 2010 appellant, then a 60-year-old transportation 

security officer (screener), sustained a temporary aggravation of a left ankle posterior tibial tendon 

tear and a temporary aggravation of the left pes planus while in the performance of duty.3

OWCP thereafter received an April 10, 2018 medical report by Dr. Jack L. Rook, an 

attending Board-certified physiatrist. Dr. Rook noted a history of the accepted August 14, 2010 

employment injury and appellant’s medical treatment. On physical examination, he reported that 

appellant ambulated with an antalgic gait into the examination room and otherwise noted that he 

did not demonstrate any chronic pain behaviors. On general examination with appellant standing,

Dr. Rook noted that he had a collapse of his left longitudinal arch. There was muscle atrophy of 

the left foot intrinsic musculature compared to the right side. On evaluation of the left foot,

Dr. Rook found tenderness of the plantar fascia adjacent to the left heel. There was no discomfort 

elicited with compression of the metatarsal heads. There was also tenderness along the medial 

foot extending to the medial ankle just below the medial malleolus. There was no swelling or 

deformity of the ankle joint. On range of motion (ROM) examination of the left ankle, Dr. Rook 

reported 10 degrees of dorsiflexion, 20 degrees of plantar flexion, 20 degrees of eversion, and 15 

degrees of inversion measured three times. In view of the fact that the posterior tibial tendon tear 

was a permanent condition and appellant’s foot and ankle problems had persisted for the past eight 

years, he recommended that his diagnoses be expanded to include permanent aggravation of a left 

ankle posterior tibial tendon tear and permanent aggravation of the left pes planus. Dr. Rook

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

Permanent Impairment (A.M.A., Guides)

4

and utilized the diagnosis-based impairment (DBI) 

rating method to find that, under Table 16-2 (Foot and Ankle Regional Grid), page 501, the class 

of diagnosis (CDX) for a torn posterior tibial tendon resulted in a class 1 impairment with a default 

value of five. Dr. Rook assigned a grade modifier for functional history (GMFH) of 2 based on 

appellant’s chronic limp and need for a cane, modified footwear, and an Arizona brace. He 

assigned a grade modifier for physical examination (GMPE) of 1. Dr. Rook found that a grade 

modifier for clinical studies (GMCS) was not applicable as the clinical studies were used to 

establish the diagnosis and proper placement in the regional grid. He utilized the net adjustment 

formula (GMFH - CDX) + (GMPE - CDX) = (2 - 1) + (1 - 1) = +1, which resulted in a grade D or 

 

3 Appellant had other claims accepted by OWCP. In a claim adjudicated by OWCP under File No. xxxxxx705, 

OWCP accepted appellant’s April 24, 2010 traumatic injury claim for cervical sprain and temporary aggravation of 

cervical spondylosis with myelopathy. In a claim for a September 30, 2011 traumatic injury adjudicated by OWCP 

under File No. xxxxxx171, OWCP accepted neck sprain, cervical spondylosis without myelopathy, and various right 

shoulder conditions including bursitis and sprain. Appellant’s claims in File Nos. xxxxxx705 and xxxxxx171 have 

been administratively combined with the present claim, File No. xxxxxx461, with File No. xxxxxx705 designated as 

the master file.

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

six percent permanent impairment of the left lower extremity. Dr. Rook also utilized the ROM 

rating method and referenced Table 16-20 (Hindfoot Motion Impairments) and Table 16-22 (Ankle 

Motion Impairments), page 549, to find two percent permanent impairment for inversion at 15 

degrees, seven percent permanent impairment for plantar flexion at 20 degrees, and seven percent 

permanent impairment at 10 degrees of dorsiflexion. He combined these values to equal 16 percent 

permanent impairment of the left lower extremity. Dr. Rook concluded that appellant had 16 

percent permanent impairment of the left lower extremity given that he had a higher rating for 

permanent impairment under the ROM rating method.

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

On September 11, 2018 OWCP routed Dr. Rook’s April 10, 2018 report, a statement of 

accepted facts (SOAF), and the case file to Dr. Arthur S. Harris, a Board-certified orthopedic 

surgeon serving as a district medical adviser (DMA), for review and a determination of permanent 

impairment of the left lower extremity in accordance with the sixth edition of the A.M.A., Guides

and the date of maximum medical improvement (MMI).

In a September 12, 2018 report, Dr. Harris reviewed the medical record, including the 

report of Dr. Rook. He found that the diagnosis of left ankle posterior tibial tendon tear had been

established. Using the DBI method with reference to appellant’s left ankle condition, the DMA

found that, under the sixth edition of the A.M.A., Guides, Table 16-2, page 501, appellant had six 

percent permanent impairment of the left lower extremity. He noted that Dr. Rook had calculated 

appellant’s impairment using both the DBI and ROM rating methods. The DMA explained that 

the A.M.A., Guides do not allow an impairment rating due to loss of ROM for the applicable 

diagnosis because the diagnosis did not contain an asterisk (*) in the DBI grid, and thus the ROM 

method was not applicable. He concluded that appellant reached MMI on April 10, 2018, the date 

of Dr. Rook’s impairment evaluation. 

By decision dated June 19, 2019, OWCP granted appellant a schedule award for six percent 

permanent impairment of the left lower extremity. The period of the award ran for 17.28 weeks 

for the period April 10 through August 8, 2018, and was based on the opinions of Dr. Rook and 

the DMA.

5

On July 3, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on October 10, 2019.

By decision dated December 26, 2019, OWCP’s hearing representative affirmed the 

June 19, 2019 decision.

 

5 By separate decision on that same date OWCP expanded the acceptance of appellant’s claim to include a 

permanent aggravation of a left ankle posterior tibial tendon tear and a permanent aggravation of left pes planus. 
4

LEGAL PRECEDENT

The schedule award provisions of FECA6and its implementing regulations7set 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. 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

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the 

World Health Organization’s International Classification of Functioning, Disability and Health 

(ICF).11 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 ankle, the relevant portion of the leg for the present case, reference 

is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501.12 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).13 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.14

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 

 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404.

8

Id. 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 Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5a (March 2017).

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

11 A.M.A., Guides, page 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): 

A Contemporary Model of Disablement.

12 See A.M.A., Guides 501-08, Table 16-2.

13 Id. at 515-22.

14 Id. at 23-28.
5

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

impairment specified.15

ANALYSIS

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

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

schedule award.

Appellant submitted an April 10, 2018 report from Dr. Rook to support his claim for a 

schedule award. Dr. Rook reviewed appellant’s history and conducted an examination. He 

reported a diagnosis of left ankle posterior tibial tendon tear. Utilizing the DBI methodology under 

Table 16-2, page 501 of the sixth edition of the A.M.A., Guides, Dr. Rook found that appellant 

had a class 1, grade C impairment for left ankle posterior tibial tendon tear. He assigned a grade 

modifiers and applied the net adjustment formula to find a net adjustment of +1, which yielded six 

percent left lower extremity permanent impairment. Dr. Rook also opined that appellant had 16 

percent permanent impairment of the left lower extremity under the ROM methodology.

OWCP properly referred the evidence of record to a DMA, Dr. Harris. In his 

September 12, 2018 report, the DMA concurred with Dr. Rook’s finding that appellant had six 

percent permanent impairment of the left lower extremity. However, the DMA disagreed with

Dr. Rook’s 16 percent left lower extremity impairment rating as it was based on the ROM

methodology. He correctly explained that the A.M.A., Guides do not allow an impairment rating 

due to loss of ROM for the applicable diagnosis because the diagnosis did not contain an asterisk 

(*) in the DBI grid, and thus the ROM method was not applicable.16

The Board finds that the DMA properly applied the A.M.A., Guides to find that appellant 

had no more than six percent permanent impairment of the left lower extremity, for which he 

previously received schedule award compensation. Dr. Harris’ report is detailed, well rationalized, 

and based on a proper factual background, and thus his opinion represents the weight of the 

medical evidence.

17

 As such, the Board finds that appellant has not met his burden of proof to 

establish greater left lower extremity permanent impairment than what was previously awarded.

On appeal counsel contends that OWCP failed to give due deference to the findings of 

appellant’s attending physician. The Board does not find that the assertion is meritorious. As

explained above, appellant has not established greater than six percent permanent impairment of 

his left lower extremity.

 

15 See supra note 9 at Chapter 2.808.6(f) (March 2017). See also P.W., Docket No. 19-1493 (issued August 12, 

2020); Frantz Ghassan, 57 ECAB 349 (2006).

16 See V.S., Docket No. 19-1679 (issued July 8, 2020); N.M., Docket No. 19-1925 (issued June 3, 2020); T.F.,

Docket No. 19-0157 (issued April 21, 2020).

17 See id.
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 six

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

schedule award.

ORDER

IT IS HEREBY ORDERED THAT the December 26, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 30, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board