United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.K., Appellant

and

DEPARTMENT OF AGRICULTURE, 

FOOD SAFETY & INSPECTION SERVICE, 

Springdale, AR, Employer

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Docket No. 21-0712

Issued: January 10, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 9, 2021 appellant, through counsel, filed a timely appeal from a March 15, 2021 

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 to consider 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 greater than 11 

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

schedule award.

FACTUAL HISTORY

On July 17, 2013 appellant, then a 47-year-old consumer safety inspector, filed an 

occupational disease claim (Form CA-2) alleging that factors of his federal employment caused or 

aggravated a left foot condition. He noted that he first became aware of his condition on 

December 7, 2012 and realized its relationship to his federal employment on July 10, 2013. 

Appellant stopped work on July 15, 2013. OWCP assigned the claim OWCP File No. xxxxxx358

and on August 1, 2013 accepted aggravation of left foot ulcer.3 It paid appellant wage-loss 

compensation.

The record in appellant’s prior claim, assigned OWCP File No. xxxxxx817, contained a 

February 2, 2016 medical report by Dr. Saad M. Al-Shathir, a Board-certified physiatrist and an 

OWCP referral physician. Dr. Al-Shathir referenced Table 16-25 on page 550 of the sixth edition 

of the American Medical Association, Guides to the Evaluation of Permanent Impairment 

(A.M.A., Guides)

4 and identified a class 4 diagnosis (CDX) for left greater toe with 100 percent 

complete subluxation and loss of range of motion (ROM). According to Table 16-10 on page 530, 

he found 12 percent permanent impairment of the left lower limb due to left greater toe, which 

converted to 5 percent whole person impairment. Further, Dr. Al-Shathir identified a class 3 CDX 

for left foot ulcer under Table 16-2 on page 501. Based on Table 16-1 on page 495, he determined 

that appellant had 26 percent permanent impairment of the left lower extremity due to left foot 

ulcer, which converted to 11 percent whole person impairment.

Additionally, in appellant’s prior claim assigned OWCP File No. xxxxxx817,

Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving as an OWCP district medical 

adviser, in a report dated March 25, 2016, utilized the sixth edition of the A.M.A., Guides and 

found that appellant had 10 percent permanent impairment of the left lower extremity due to left 

great toe metatarsophalangeal (MTP) joint dislocation and one percent permanent impairment of 

the left lower extremity due to left foot ulcer. 

In an April 1, 2016 OWCP decision issued in OWCP File No. xxxxxx817, OWCP granted 

appellant a schedule award for 11 percent permanent impairment of the left lower extremity. The 

period of the award ran for 31.68 weeks from February 2 through September 10, 2016. 

3 Appellant has a prior claim involving his left lower extremity. OWCP accepted appellant’s occupational disease 

claim assigned OWCP File No. xxxxxx817 for aggravation of left flat foot and aggravation of left Charcot foot. That 

claim has been administratively combined with the current claim OWCP File No. xxxxxx358 designated as the master 

file. 

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

In the current claim, under OWCP File No. xxxxxx358, OWCP received an August 3, 2016 

report by Dr. M. Stephen Wilson, an attending Board-certified orthopedic surgeon. Dr. Wilson 

described appellant’s history of injury and medical treatment. He reported findings on physical 

and x-ray examination of the left foot. Dr. Wilson opined that appellant sustained a significant 

work-related left foot/ankle injury. He advised that appellant had reached maximum medical 

improvement (MMI). Dr. Wilson determined that he had one percent permanent impairment of 

the left lower extremity due to chronic recurrent left foot and ankle pain and weakness. He 

referenced Table 16-2 of the sixth edition of the A.M.A., Guides and identified a class 1 CDX for 

ulcerative lesion with a mid-range default value of one percent. Dr. Wilson applied a grade 

modifier of 1 for functional history (GMFH) under Table 16-6 secondary to a pain adjustment 

questionnaire score of 65. He noted that a grade modifier for physical examination (GMPE) under 

Table 16-7 was not applicable (N/A) because this was used to determine the CDX. Dr. Wilson 

applied a grade modifier of 1 for clinical studies (GMCS) under Table 16-8. He utilized the net 

adjustment formula (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (1 - 1) + (N/A) + (1 -

1) = 0, leaving the default grade C one percent permanent impairment rating for the left lower 

extremity due to ulcerative lesion undisturbed. Dr. Wilson referenced Table 16-2 and identified a 

CDX of 2 for left Charcot foot with a mid-range default value of 16 percent impairment. He 

assigned a GMFH of 1 for the same reason as noted above for the diagnosis of ulcerative lesion. 

Dr. Wilson assigned a GMPE of 2 for moderate deformity under Table 16-7. He noted that a 

GMCS was N/A as this was used to determine the CDX. Dr. Wilson applied the net adjustment 

formula (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (1 - 2) + (2 - 2) + (N/A) = -1, 

which shifted from grade C to a grade B, 15 percent permanent impairment of the left lower 

extremity due to Charcot foot. Using the Combined Values Chart on page 604, he found that 

appellant had 17 percent permanent impairment of the left lower extremity.

By letter dated December 16, 2016, OWCP informed appellant that Dr. Wilson’s August 3, 

2016 report was insufficient to establish a schedule award. It requested that he submit an 

impairment evaluation from his attending physician that addressed whether he had obtained MMI 

and to provide a permanent impairment rating in accordance with the sixth edition of the A.M.A., 

Guides. OWCP afforded appellant 30 days to submit the requested evidence. 

On February 6, 2017 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

Subsequently, OWCP received a report dated February 1, 2017 from Dr. Wilson. 

Dr. Wilson advised that the date of MMI was August 3, 2016, the date of his impairment 

evaluation. He reiterated his prior calculations and opinion that appellant had one percent 

permanent impairment of the left lower extremity due to ulcerative lesion and 15 percent 

permanent impairment of the left lower extremity due to Charcot foot. 

On March 29, 2018 OWCP routed Dr. Wilson’s August 3, 2016 and February 1, 2017 

reports, a statement of accepted facts (SOAF), and the case file to Dr. David J. Slutsky, a Boardcertified orthopedic surgeon serving as an OWCP district medical adviser (DMA), for review and 

a determination of permanent impairment of appellant’s left lower extremity under the sixth edition 

of the A.M.A., Guides, and his date of MMI.
4

In a May 7, 2018 report, Dr. Slutsky reviewed the findings in Dr. Wilson’s August 3, 2016 

and February 1, 2017 reports. He opined that appellant had one percent permanent impairment of 

the left lower extremity due to an aggravation of left foot ulcer and three percent permanent 

impairment of the left lower extremity due to Charcot joint of the left foot in accordance with the 

sixth edition of the A.M.A., Guides. The DMA noted that the hallmark deformity associated with 

this condition is mid-foot collapse, described as a “rocker-bottom” foot, which appellant did not 

have and; therefore, there was inadequate documentation in the medical record to support the 

diagnosis of a Charcot joint of the mid-foot. He found that, according to Table 16-2 on page 501, 

appellant had a CDX of 1 for aggravation of left foot ulcer as demonstrated by consistent palpatory 

and/or radiographic findings, which resulted in a grade C default value of one percent. The DMA 

assigned a GMFH of 1 as there was no lower limb questionnaire and there was pain and weakness 

in the left foot/ankle. He assigned a GMPE of 1 due to a possible one by one centimeter skin 

breakdown on the lateral aspect of the foot. The DMA noted that, apparently, there was normal 

ankle motion. In addition, there was no documentation of inversion or eversion as a validated 

lower extremity ROM examination was not performed. There was an antalgic gait. The DMA 

assigned a GMCS of 1 due to severe hallux valgus deformity with moderate subluxation of the 

first MTP joint. He applied the net adjustment formula (GMFH - CDX) + (GMPE - CDX) +

(GMCS - CDX) = (1 - 1) + (1 - 1) + (1 - 1) = 0, which resulted in a grade C, one percent permanent 

impairment of the left lower extremity due to an aggravation of left foot ulcer.

The DMA again referenced Table 16-2 and found a CDX of 1 for left foot Charcot joint 

that was nondisplaced with minimal findings, which represented a grade C default value of three 

percent. He assigned a GMFH of 1 and GMPE for the same reasons as noted above for the left 

foot ulcer. The DMA assigned a GMCS of 0 as there was no documented trans-tarsal subluxation 

or dislocation. He applied the net adjustment formula (GMFH -CDX) + (GMPE - CDX) + (GMCS 

- CDX) = (1 - 1) + (1 - 1) + (0 - 1) = -1, which resulted in movement one space to the left from the 

grade C default value, resulting in a grade B, three percent permanent impairment of the left lower 

extremity due to left foot Charcot joint. The DMA indicated that the ROM rating method could 

not be performed due to a lack of ROM measurements for the hind foot and mid-foot. He advised 

that appellant had reached MMI on August 3, 2016, the date of Dr. Wilson’s initial impairment 

evaluation. The DMA noted that Dr. Wilson’s finding that appellant had a class 2 impairment due 

to Charcot joint represented a default value of 16 percent that was associated with moderate-tosevere motion deficits and/or moderate malalignment/angulation. Additionally, he indicated that

Dr. Wilson reported that appellant had normal ankle motion and did not report any transtarsal i.e., 

navicular/cuboid malalignment. The DMA, therefore, advised that appellant had a class 1 

impairment with a default value of three percent for nondisplaced Charcot joint.

On September 21, 2018 OWCP requested that Dr. Slutsky review additional medical

records in OWCP File No. xxxxxx817, including the previous schedule award of 11 percent left 

lower extremity permanent impairment, and to provide an addendum report regarding the extent 

of appellant’s left lower extremity permanent impairment. 

In an October 31, 2018 report, Dr. Slutsky reviewed the additional medical records in 

OWCP File No. xxxxxx817. He reiterated his prior calculations and opinion that appellant had

one percent permanent impairment of the left lower extremity due to an aggravation of left foot 

ulcer and three percent permanent impairment of the left lower extremity due to left foot Charcot 

joint. The DMA noted that Dr. Al-Shathir failed to explain how he arrived at his 12 percent 
5

permanent left lower extremity impairment due to great toe impairment in accordance with the 

A.M.A., Guides. He related that Dr. Al-Shathir assigned a class 3 under Table 16-2 for left foot 

ulcer and found 26 percent impairment; however, there was no class 3 category in this table. The 

DMA indicated that there was only a class 1 category which had a maximum two percent 

impairment rating. He related that, while Dr. Berman determined that appellant had 10 percent 

left lower extremity permanent impairment due to great toe MTP joint dislocation, there was no 

x-ray documentation of this condition. 

On January 29, 2019 OWCP requested that Dr. Slutsky clarify his October 31, 2018 report, 

noting that he did not identify or address appellant’s prior schedule award of 11 percent permanent 

impairment of the left lower extremity. It requested that he provide an addendum report based on 

his review of the medical record and an updated SOAF.

In response, Dr. Slutsky submitted an amended October 27, 2018 report, noting that his 

one percent left lower extremity impairment rating for aggravation of left foot ulcer and three 

percent left lower extremity impairmentrating for left foot Charcot joint included appellant’s prior 

schedule award of 11 percent left lower extremity permanent impairment. He advised that 

appellant had no additional impairment. 

By decision dated December 5, 2019, OWCP denied appellant’s claim for an increased 

schedule award. It accorded the weight of the medical evidence to Dr. Slutsky, the DMA, who 

determined that appellant had no greater permanent impairment than the 11 percent previously 

awarded for the left lower extremity.

On December 12, 2019 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review, which was held on April 15, 2020. 

By decision dated June 22, 2020, the hearing representative affirmed OWCP’s 

December 5, 2019 decision.

On December 15, 2020 and January 31, 2021 appellant, through counsel, requested 

reconsideration of the June 22, 2020 decision. 

In a March 15, 2021 decision, OWCP denied modification of its June 22, 2020 decision.

LEGAL PRECEDENT

The schedule award provisions of FECA5 and its implementing regulations6 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. 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. 

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.
6

Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.7 As of May 1, 2009, schedule awards are determined in 

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

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.13

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish greater than 11

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

schedule award.

Appellant submitted reports dated August 3, 2016 and February 1, 2017 from Dr. Wilson 

who diagnosed left foot ulcerative lesion and Charcot foot, and found that appellant had reached 

MMI due to his conditions. Utilizing Table 16-2,

14 Dr. Wilson determined that appellant had one 

percent permanent impairment of the left lower extremity due to ulcerative lesion and 15 percent 

7

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January2010); see alsoChapter 2.808.5(a) (March 2017).

9 P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

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

11 Id. at 515-22.

12 Id. at 23-28.

13 See supra note 8 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).

14 Supra note 10at 501, Table 16-2.
7

permanent impairment of the left lower extremity due to Charcot foot. Using the Combined Values 

Chart,15 he found that appellant had 17 percent permanent impairment of the left lower extremity. 

In accordance with its procedures, OWCP properly referred the medical record to

Dr. Slutsky, a DMA,16 who reviewed the clinical findings of Dr. Wilson on May 7, 2018 and 

concluded that appellant had one percent permanent impairment of the left lower extremity due to 

an aggravation of left foot ulcer and three percent permanent impairment of the left lower extremity 

due to left foot Charcot joint. Dr. Slutsky also determined that appellant had reached MMI on 

August 3, 2016. Regarding impairment due to appellant’s aggravation of left foot ulcer, the DMA

utilized Table 16-2

17 and determined that appellant had a CDX of 1, which represented a grade C 

impairment with a default value of one percent. The DMA assigned a grade modifier of 1 for 

GMFH, GMPE, and GMCS. He applied the net adjustment formula and concluded that appellant 

had one percent permanent impairment of the left lower extremity due to an aggravation of left 

foot ulcer. Although the DMA noted that the medical record did not support a diagnosis of left 

foot Charcot joint, he rated appellant’s permanent impairment due to this condition. He again 

utilized Table 16-2

18 and determined that appellant had a CDX of 1 which represented a grade C 

impairment with a default value of three percent. The DMA assigned a grade modifier of 1 for 

GMFH and GMPE, and a grade modifier of 0 for GMCS. He applied the net adjustment formula 

and concluded that appellant had three percent permanent impairment of the left lower extremity 

due to left foot Charcot joint. The DMA related that the ROM rating method was not applicable 

in the absence of ROM measurements for the hind foot and mid-foot. He noted that Dr. Wilson’s 

finding that appellant had a class 2 impairment due to Charcot joint represented a default value of 

16 percent that was associated with moderate-to-severe motion deficits and/or moderate 

malalignment/angulation. The DMA related that Dr. Wilson reported normal ankle motion and 

did not report any transtarsal, i.e., navicular/cuboid malalignment. He, therefore, advised that 

appellant had a class 1 impairment with a default value of three percent for nondisplaced Charcot 

joint.

OWCP subsequently requested that Dr. Slutsky review additional medical records in 

OWCP File No. xxxxxx817. On October 31, 2018 the DMA restated his prior calculations and 

opinion that appellant had one percent permanent impairment of the left lower extremity due to an 

aggravation of left foot ulcer and three percent permanent impairment of the left lower extremity 

due to left foot Charcot joint. He noted that Dr. Al-Shathir did not explain how he arrived at his 

12 percent permanent left lower extremity impairment rating based on great toe impairment in 

accordance with the A.M.A., Guides. The DMA also noted that the physician assigned a CDX of

3 for left foot ulcer under Table 16-2, which represented a default value of 26 percent impairment,

in the absence of such a class category. He related that there was only a class 1 category , which 

had a maximum two percent impairment rating.

15 Id. at 604 to 606.

16 Supra note 14.

17 A.M.A., Guides 501, Table 16-2.

18 Id.
8

On January 29, 2019 OWCP requested that Dr. Slutsky address appellant’s prior schedule 

award of 11 percent left lower extremity permanent impairment. In an amended report dated 

October 27, 2018, the DMA advised that appellant had no additional impairment. He noted that 

his one percent left lower extremity impairment rating for aggravation of left foot ulcer and three 

percent left lower extremity impairment rating for left foot Charcot joint included appellant’s prior 

schedule award of 11 percent left lower extremity permanent impairment.

The Board finds that the one percent left lower extremity impairment rating for aggravation 

of left foot ulcer and three percent left lower extremity impairment rating for left foot Charcot joint 

from the DMA represents the weight of the medical evidence in this case, as he properly applied 

the appropriate provisions of the A.M.A., Guides to the clinical findings of record.19 There is no 

evidence establishing greater impairment in conformance with the A.M.A., Guides.

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 greater than 11

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

schedule award.

19 K.M., Docket No. 19-1526 (issued January 22, 2020); G.S., Docket No. 19-0277 (issued August 22, 2019); J.H.,

Docket No. 18-1207 (issued June 20, 2019).
9

ORDER

IT IS HEREBY ORDERED THAT the March 15, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 10, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board