United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Richmond, VA, Employer

__________________________________________

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Docket No. 20-1660

Issued: June 30, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 24, 2020 appellant, through counsel, filed a timely appeal from an August 4, 

2020 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.3

 

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.

3 The Board notes that appellant submitted additional evidence to OWCP following the August 4, 2020 decision. 

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 her burden of proof to establish greater than two

percent permanent impairment of her right lower extremity, for which she previously received a 

schedule award.

FACTUAL HISTORY

On December 5, 2017 appellant, then a 27-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she sustained a right ankle sprain when she fell while delivering 

mail in the performance of duty.4 On May 1, 2018 OWCP accepted the claim for a right ankle 

sprain. 

On October 25, 2018 appellant underwent OWCP-authorized right ankle arthroscopy with 

debridement and lateral ligament repair, performed by Dr. Tejas T. Patel, a Board-certified 

orthopedic surgeon. OWCP paid appellant wage-loss compensation on the supplemental rolls for 

disability from work commencing October 26, 2018. Dr. Patel submitted periodic progress notes 

during appellant’s recuperation. 

Appellant returned to full-time light-duty work on January 30, 2019 and to full-duty work 

on April 9, 2019. 

In an April 23, 2019 report, Dr. Patel opined that appellant had attained maximum medical 

improvement (MMI). On examination of the right ankle, he observed good alignment and 

perifibular tenderness. Dr. Patel measured dorsiflexion at 5 degrees and plantar flexion at 50 

degrees. 

In a July 31, 2019 note, Dr. Patel reiterated that appellant had attained MMI on 

April 23, 2019. 

On August 8, 2019 appellant filed a claim for a schedule award (Form CA-7) due to her 

accepted employment conditions. 

In a development letter dated August 19, 2019, OWCP requested an impairment rating 

based on the sixth edition of the American Medical Association, Guides to the Evaluation of 

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

5 which provided appropriate measurements, findings,

and a recommended percentage of permanent impairment of the affected member or members 

based on the applicable tables of the A.MA., Guides. It afforded 30 days for appellant to submit 

the requested evidence. No response was received.

 

4 A January 11, 2018 magnetic resonance imaging (MRI) scan of the right foot demonstrated a partial tear of the 

deltoid ligament, thickening and increased signal in the spring ligament, complete tears of the anterior talofibular 

ligament and calcaneofibular ligaments, bone contusions of the talus and distal fibula/medial malleolus, and fluid 

within the peroneal tendon sheath indicative of a calcaneofibular ligament injury. 

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

By decision dated October 29, 2019, OWCP denied appellant’s schedule award claim as 

the medical evidence of record did not establish a ratable permanent impairment of a scheduled 

member. 

On November 5, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. She submitted an October 28, 2019 

impairment rating by Dr. Joshua B. Macht, a Board-certified internist. Dr. Macht provided a 

history of injury and treatment. He found that appellant had attained MMI as of April 23, 2019. 

Dr. Macht noted that appellant experienced continued pain and swelling in the right ankle,

diminished endurance for standing, walking, squatting, and stair climbing, and had difficulty 

walking on inclines. During his October 25, 2019 examination of the right ankle, he observed 

arthroscopy scars, 1 centimeter swelling, tenderness to palpation over the anterior and lateral 

aspect, grade IV motor weakness in dorsiflexion, a normal sensory examination, and no instability. 

Dr. Macht recorded three trials of right ankle range of motion measurements as follows:

dorsiflexion at 12/10/10 degrees; plantar flexion at 50/48/46 degrees; inversion at 20/20/18 

degrees; eversion at 20/20/20 degrees. He reviewed the American Academy of Orthopedic 

Surgeons (AAOS) Lower Limb Questionnaire completed by appellant with a score of 63.

Dr. Macht referred to the A.M.A., Guides and utilized the diagnosis-based impairment (DBI) 

method. He found a grade modifier for functional history (GMFH) of 1 based on the AAOS Lower 

Limb Questionnaire score, and a grade modifier for findings on physical examination (GMPE) of 

1. Dr. Macht noted that there was no applicable grade modifier for clinical studies (GMCS) as 

they were used to define the impairment class. He utilized the net adjustment formula GMFH-

(CDX) + (GMPE - CDX) + (GMCS - CDX) = (1-1) + (1-1) = zero, leaving the default grade C 

undisturbed. Dr. Macht concluded that according to Table 16-2, page 501 of the A.M.A., Guides

Foot and Ankle Regional (Grid), appellant had a class 1, grade C impairment class of diagnosis 

(CDX) for right ankle strain, equaling two percent permanent impairment right lower extremity.

He also utilized the range of motion (ROM) assessment method. Dr. Macht noted that there were 

no applicable net grade modifiers as the GMFH equaled the ROM impairment class. He found 

that according to Table 16-20, page 549 Hindfoot Motion Impairments), appellant had two percent 

permanent impairment of the right lower extremity for ankle inversion limited from 10 to 20 

degrees, and seven percent permanent impairment for dorsiflexion from 0 to 10 degrees according 

to Table 16-22, page 549 Ankle Motion Impairments). Dr. Macht added these impairments to 

calculate nine percent permanent impairment of the right lower extremity based on the ROM rating 

method. He concluded that the ROM method should be utilized as it resulted in a higher percentage 

of impairment. 

By decision dated February 6, 2020, OWCP’s hearing representative set aside the 

October 29, 2019 OWCP decision and remanded the case to OWCP for referral of Dr. Macht’s 

impairment rating to a district medical adviser (DMA) for evaluation.

On remand, OWCP referred Dr. Macht’s impairment rating and a statement of accepted 

facts (SOAF) to Dr. Morley Slutsky, Board-certified in occupational medicine and serving as an 

OWCP DMA. In a March 1, 2020 report, Dr. Slutsky concurred with Dr. Macht’s assessment of 

two percent permanent lower extremity impairment for limited ankle inversion, but found that he 

erred in assigning seven percent permanent impairment for 12 degrees eversion. He explained that 

according to Table 16-22, 12 degrees eversion equaled zero percent impairment of the right lower 

extremity. Dr. Slutsky calculated that appellant had two percent permanent impairment of the 

right lower extremity based on either the ROM or DBI method.
4

By decision dated April 2, 2020, OWCP granted appellant a schedule award for two

percent permanent impairment of her right lower extremity. The award ran for 5.76 weeks from 

October 28 to December 7, 2019 and was based on the October 28, 2109 clinical findings of

Dr. Macht and the March 1, 2010 report of Dr. Slutsky, serving as DMA. 

On April 7, 2020 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on June 26, 2020.

By decision dated August 4, 2020, OWCP’s hearing representative affirmed the April 2, 

2020 schedule award determination, finding that OWCP properly accorded Dr. Slutsky’s review 

of Dr. Macht’s opinion the weight of the medical evidence.

LEGAL PRECEDENT

The schedule award provisions of FECA,6and its implementing federal regulations,7set 

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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.8 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.9

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 501.10 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 utilizing GMFH, GMPE, and GMCS. The net 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11 Under Chapter 2.3, 

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

diagnoses from regional grids and calculations of modifier scores.12

 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404. 

8

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019). 

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

2.808.5a (March 2017); see also Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 

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

11 Id. at 515-22. 

12 Id. at 23-28. 
5

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.

13

ANALYSIS

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

percent permanent impairment of her right lower extremity, for which she previously received a 

schedule award.

The Board finds that OWCP properly relied on the opinion of Dr. Slutsky, a DMA, in 

determining that appellant had no greater than two percent permanent impairment of her right 

lower extremity.

In an October 28, 2019 report, Dr. Macht discussed appellant’s factual and medical history 

with regard to the accepted December 5, 2017 right ankle injury. He reported the findings of his 

October 25, 2019 physical examination. Dr. Macht properly referred to the sixth edition of the 

A.M.A., Guides and utilized the DBI rating method to find that, under Table 16-2 on page 501, 

the CDX for appellant’s right ankle condition resulted in a Class 1 impairment with a default value 

of two percent.14 He assigned a GMFH of 1 based on appellant’s Lower Limb Questionnaire score. 

Dr. Macht assigned a GMPE of 1. Dr. Macht found that a GMCS was not applicable as the clinical 

studies were used to establish the diagnostic criteria and define the class. He utilized the net 

adjustment formula, (GMFH - CDX) + (GMPE - CDX) – (1-1) + (1-1) = zero, which left the 

default grade of C in place, to equal two percent permanent impairment of the right lower 

extremity.15

Dr. Macht also offered an impairment rating based on the ROM method. He assessed two

percent right lower extremity impairment for ankle inversion limited from 10 to 20 degrees 

according to Table 16-20, page 549, and seven percent impairment for dorsiflexion limited from 

0 to 10 degrees according to Table 16-22, page 549.

OWCP properly routed Dr. Macht’s report to its DMA, Dr. Slutsky.16 In a March 1, 2020 

report, Dr. Slutsky concurred with Dr. Macht’s calculation of two percent permanent impairment 

of the right lower extremity utilizing the DBI method for right ankle inversion limited to 20 

degrees. He opined, however, that Dr. Macht erred in assessing seven percent permanent 

impairment of the right lower extremity for 12 degrees dorsiflexion, as Table 16-22 provided that 

dorsiflexion greater than 10 degrees did not constitute an impairment. 

The Board finds that the DMA’s opinion constitutes the weight of the medical evidence 

with respect to the permanent impairment of appellant’s right lower extremity because he properly 

 

13 Supra note 9 at Chapter 2.808.6(e) (March 2017); see also A.K., Docket No. 19-1927 (issued March 31, 2021); 

K.S., Docket No. 20-1397 issued March 19, 2021); Tommy R. Martin, 56 ECAB 273 (2005).

14 See supra note 10 at 501, Table 16-2.

15 Dr. Macht determined that appellant’s date of MMI was April 23, 2019.

16 See supra note 13.
6

applied the appropriate standards of the A.M.A., Guides.

17

 For these reasons, appellant has not 

met her burden of proof to establish greater than two percent permanent impairment of her right 

lower extremity, for which she previously received a schedule award.

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 her burden of proof to establish greater than two

percent permanent impairment of her right lower extremity, for which she previously received a 

schedule award.

ORDER

IT IS HEREBY ORDERED THAT the August 4, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 30, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

17 A.K., supra note 13. See O.F., Docket No. 19-0986 (issued February 12, 2020); M.C., Docket No. 15-1757 

(issued March 17, 2016) (the only medical evidence that demonstrated a proper application of the A.M.A., Guides

was the report of the DMA).