United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.G., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

ALCOHOL, TOBACCO, FIREARMS & 

EXPLOSIVES, Houston, TX, Employer

__________________________________________

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Docket No. 21-0113

Issued: October 7, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On November 3, 2020 appellant filed a timely appeal from October 6 and 23, 2020 merit 

decisions 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 29 

percent permanent impairment of his right lower extremity and 27 percent permanent impairment 

of his left lower extremity, for which he previously received schedule award compensation.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On October 31, 2014 appellant, then a 56-year-old criminal investigator, filed a traumatic 

injury claim (Form CA-1) alleging that on October 1, 2014 he developed pain and soreness in both

feet and knees while participating in exercise sessions as part of the employing establishment’s 

health improvement plan. OWCP accepted the claim for lateral collateral ligament sprain of the 

knee; bilateral acquired hallux valgus; bilateral acquired hammertoe; pain due to internal 

orthopedic prosthetic devices, implants, and grafts, initial encounter; bilateral foot primary 

osteoarthritis; and pseudarthrosis after fusion or arthrodesis.

Appellant underwent authorized right foot bunionectomy and right fifth toe proximal 

interphalangeal (PIP) joint arthroplasty on February 13, 2015; left foot first metatarsal phalangeal 

joint arthrodesis, left fifth toe PIP joint arthroplasty, and right third toe distal interphalangeal(DIP)

joint arthroplasty on June 19, 2015; and hardware removal from the left foot, arthrodesis of the left

foot second PIP joint, tenotomy and capsulotomy of the second metatarsal phalangeal joint on

July 27, 2017.

By decisions dated November 23, 2016 and August 29, 2018, OWCP granted appellant 

schedule awards for a total of 29 percent permanent impairment of the right lower extremity and 

27 percent permanent impairment of the left lower extremity.

On July 25, 2019 appellant underwent a bilateral second toe arthroplasty, tenotomy and 

capsulotomy of the bilateral second metatarsal phalangeal joints, bilateral second digit flexor 

tenotomy, and resection of left fifth metatarsal phalangeal joint.

OWCP received a November 18, 2019 medical report by a physical therapist who provided 

examination findings, which included range of motion (ROM) measurements for each lower 

extremity. The right lower extremity had 15 degrees of dorisflexion, 50 degrees of plantar flexion, 

25 degrees of inversion, and 15 degrees of eversion. The left lower extremity also had 15 degrees 

of dorisflexion, 50 degrees of plantar flexion, 25 degrees of inversion, and 15 degrees of eversion.

In a December 6, 2019 report, Dr. Gabriel A. Maislos, an attending podiatrist, applied the 

findings from the physical therapist’s November 18, 2019 report to the standards of the sixth 

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

(A.M.A., Guides)

2 and determined that appellant had an additional two percent permanent 

impairment of the right lower extremity and one percent permanent impairment of the left lower 

extremity, totaling three percent bilateral lower extremity permanent impairment due to his 

bilateral second digit hammertoe deficiencies and right fifth digit dislocation, and tailor’s bunion. 

He advised that appellant reached maximum medical improvement (MMI) on October 10, 2019.

On December 9, 2019 appellant filed a claim for an increased schedule award (Form 

CA-7).

OWCP, in a December 18, 2019 development letter, requested that appellant submit an 

impairment evaluation from his attending physician addressing whether he had reached MMI, and 

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

if so, the extent of any permanent impairment, in accordance with the sixth edition of the A.M.A., 

Guides. It afforded him 30 days to submit the necessary evidence.

On January 22, 2020 OWCP prepared a statement of accepted facts (SOAF) noting that 

appellant previously was found to have “32 percent and a 24 percent bilateral permanent 

impairment of the lower extremities.” On that same date, OWCP referred appellant’s case record 

along with the SOAF to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as a 

district medical adviser (DMA), for a review and rating of appellant’s permanent impairment of 

the bilateral lower extremities in accordance with the sixth edition of the A.M.A., Guides.

In a January 23, 2020 report, Dr. Harris reviewed the SOAF and the medical record, 

including the December 6, 2019 report of Dr. Maislos. He first evaluated the permanent 

impairment of appellant’s bilateral lower extremities utilizing the diagnosis-based impairment 

(DBI) rating method of the sixth edition of the A.M.A., Guides. Regarding permanent impairment 

to the right lower extremity, the DMA used Table 16-2 on page 508, and identified the class of 

diagnosis (CDX) as correction of right second and fifth digit deformities as a class 1, grade C, 

which resulted in one percent impairment of each digit. Using the Combined Values Chart, he 

determined that appellant had two percent permanent impairment of the right lower extremity. The 

DMA then related that his diagnosed right lower extremity condition did not meet the criteria under 

Section 16.7 on page 543 to allow application of the ROM rating method. Regarding permanent 

impairment to appellant’s left lower extremity, he again utilized the DBI method under Table 16-2 

and identified the CDX as correction of left second digit deformity as a class 1, grade C 

impairment, which yielded one percent impairment. Using Table 16-2 again, the DMA identified 

an additional CDX as arthrodesis for the left first metatarsal phalangeal joint as a class 1, grade C

impairment, which yielded 10 percent impairment. Using the Combined Values Chart, he 

determined that appellant had 11 percent permanent impairment of the left lower extremity. The 

DMA again advised that appellant’s left lower extremity diagnosed condition did not allow 

application of the ROM rating method. He determined that appellant reached MMI on 

November 18, 2019, the date of Dr. Maislos’ impairment evaluation. The DMA commented that 

he disagreed with Dr. Maislos’left lower extremity impairment rating as he did not rate appellant’s 

impairment due to his left first metatarsal phalangeal joint arthrodesis. He further commented that 

OWCP’s referral memorandum did not specifically identify which lower extremity that appellant 

previously received a schedule award for a total of “24 percent impairment and 32 percent 

impairment.” The DMA requested clarification on this issue.

On February 11, 2020 OWCP requested that the DMA review the reports of prior DMAs 

dated May 16 and July 26, 2018 and an impairment rating evaluation dated February 23, 2018 and 

provide an opinion on the extent of appellant’s permanent impairment.

In a supplemental report dated February 15, 2020, DMA Dr. Harris noted his review of 

April 6, May 16, and July 26, 2018 reports of prior DMAs, which indicated that appellant had 13 

percent permanent impairment of the right lower extremity and 11 percent permanent impairment 

of the left lower extremity, totaling 24 percent bilateral lower extremity permanent impairment. 

He also noted his review of a prior DMA’s October 13, 2016 report which indicated that appellant 

had 16 percent permanent impairment of each lower extremity, totaling 32 percent bilateral lower 

extremity permanent impairment. Based on the above, Dr. Harris opined that appellant had no 

increased permanent impairment of his right lower extremity and left lower extremity.
4

In a March 18, 2020 decision, OWCP denied appellant’s claim for an increased schedule 

award, finding that the weight of the medical evidence was accorded to DMA Dr. Harris’

February 15, 2020 report.

On June 15, 2020 appellant requested reconsideration and submitted additional medical 

evidence. An unsigned MMI assessment report dated October 10, 2019 noted that appellant had 

reached MMI. The report also indicated that he had three percent permanent impairment of the 

right lower extremity due to his ongoing medical treatment.

In a June 2, 2020 report, Dr. Maislos utilized the DBI rating method found at Table 16-2 

on page 508 of the A.M.A., Guides, to rate impairment of appellant’s right lower extremity. He 

identified the CDX as a class 1 impairment with a default value of 10 percent for right hallux 

valgus with surgical bunionectomy and pinning. Dr. Maislos did not assign a grade modifier for 

functional history (GMFH) noting that it was previously stated in his report. He assigned a grade 

modifier for physical examination (GMPE) of 1 due to loss of ROM for the great toe and noted 

that a grade modifier for clinical studies (GMCS) was not applicable as the clinical studies were 

used to identify appellant’s diagnosis. Dr. Maislos applied the net adjustment formula (GMPE -

CDX) (1 - 1 = 0), which resulted in a net adjustment of zero for a total of 10 percent permanent 

impairment due to right hallux valgus with surgical bunionectomy and pinning. Regarding 

permanent impairment to the right second toe, right third toe, and right fourth toe, he identified the 

CDX as a class 1 impairment with a default value of one percent under Table 16-2 for hammertoe 

with surgical repair and pinning. He reiterated his previous reason for not assigning a grade 

modifier for GMFH. Dr. Maislos assigned a grade modifier for GMPE of 1 due to loss of ROM 

of the right second, third, and fourth toes, and again noted that a grade modifier for GMCS was 

not applicable as the clinical studies were used to identify appellant’s diagnoses. He applied the 

net adjustment formula (GMPE - CDX) (1 - 1 = 0), which resulted in a net adjustment of zero for 

a total of one percent permanent impairment each of the right second, third, and fourth toe. 

Dr. Maislos also rated permanent impairment of appellant’s right ankle, identifying the CDX as a 

class 0 impairment with a default value of zero percent under Table 16-2 on page 507 for 

osteoarthritis. He applied the net adjustment formula (GMPE - CDX) (0 - 0 = 0) which resulted 

in a net adjustment of zero for a total of zero percent permanent impairment of the right ankle. 

Regarding permanent impairment of the left great toe, Dr. Maislos noted that the CDX was a class 

1 impairment with a default value of 10 percent according to Table 16-2 on page 508, for left 

hallux valgus with surgical bunionectomy, pinning, and fusion. He assigned a grade modifier of 

1 for GMFH due to pain with weight-bearing activities, grade modifier of 1 for GMPE due to loss 

of ROM of the left great toe, and indicated that a grade modifier for GMCS was not applicable,

for the previously stated reason. Dr. Maislos applied the net adjustment formula (GMFH - CDX) 

+ (GMPE - CDX) (1 - 1 = 0) + (1 – 1 = 0) which resulted in a net adjustment of zero for 10 percent 

permanent impairment of the left great toe. Regarding permanent impairment of the left second 

toe, he found that the CDX was a class 1 impairment with a default value of one percent under 

Table 16-2 on page 508 for left second hammertoe with surgical repair and pinning. Dr. Maislos

again did not assign a grade modifier for GMFH, for the previously stated reason. He assigned a 

grade modifier of 1 for GMPE due to loss of ROM of the left second toe and reiterated his prior 

rationale for not assigning a grade modifier for GMCS. Dr. Maislos applied the net adjustment 

formula (GMPE - CDX) (1 - 1 = 0) which resulted in a net adjustment of zero for a total of one 

percent permanent impairment of the left second toe. In rating permanent impairment of 

appellant’s left ankle, he identified the CDX as a class 1 impairment with a default value of zero 
5

percent under Table 16-2 on page 507 for left ankle osteoarthritis. Dr. Maislos assigned a grade 

modifier of 1 for GMPE due to no significant loss of ROM and restated his rationale as to why a 

grade modifier for GMCS was not applicable. He applied the net adjustment formula (GMPE -

CDX) (0 - 0 = 0) which resulted in a net adjustment of zero for a total of zero percent permanent 

impairment of the left ankle. Dr. Maislos combined the right toe impairment ratings and left toe 

and left ankle impairment ratings to calculate 24 percent bilateral lower extremity permanent 

impairment. He recommended an additional three percent bilateral lower extremity impairment 

rating based on appellant’s ongoing medical treatment. Dr. Maislos determined that he reached 

MMI on January 4, 2018.

Appellant again filed a Form CA-7 claim for an increased schedule award on 

June 13, 2020. 

On September 14, 2020 OWCP again referred appellant’s case record to DMA Dr. Harris, 

requesting that he review the medical evidence of record and determine whether appellant 

sustained increased bilateral lower extremity permanent impairment under the sixth edition of the 

A.M.A., Guides due to his authorized July 25, 2019 surgery.

In a September 21, 2020 report, Dr. Harris reviewed the medical record, and agreed with

Dr. Maislos’ June 2, 2020 impairment ratings of 13 percent for appellant’s right lower extremity 

and 11 percent for his left lower extremity. However, he disagreed with Dr. Maislos’ additional 

three percent bilateral lower extremity impairment rating due to ongoing treatment of appellant’s 

symptoms. The DMA explained that Dr. Maislos failed to provide rationale in support of his 

impairment rating. He opined that appellant had no increased bilateral lower extremity permanent 

impairment. The DMA Dr. Harris determined that appellant reached MMI on June 2, 2020, the 

date of Dr. Maislos’ most recent impairment evaluation. He explained that the medical record did 

not document that MMI was reached on January 4, 2018.

By decision dated October 6, 2020, OWCP denied appellant’s June 13, 2020 claim for an 

increased schedule award. 

By decision dated October 23, 2020, OWCP denied modification of OWCP’s March 18, 

2020 decision, finding that the weight of the medical evidence continued to rest with the DMA’s 

opinion and established that he had no additional bilateral lower extremity permanent impairment.

LEGAL PRECEDENT

It is the claimant’s burden of proof to establish permanent impairment of a scheduled 

member or function of the body as a result of an employment injury.

3

3

See T.H., Docket No. 19-1066 (issued January 29, 2020); D.F., Docket No. 18-1337 (issued February 11, 2019); 

Tammy L. Meehan, 53 ECAB 229 (2001).
6

The schedule award provisions of FECA,4 and 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. 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.6 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.7

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).8 In determining lower extremity impairment, the sixth edition of the A.M.A., Guides

requires identifying the impairment CDX, which is then adjusted by a grade modifier for functional 

history, grade modifier for physical examination, and/or grade modifier for clinical studies.

9

 The 

net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10

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.11

ANALYSIS

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

In support of his claim for an increased schedule award, appellant submitted a June 2, 2020 

report from Dr. Maislos who determined that appellant reached MMI on January 4, 2018. Using 

the appropriate tables in the sixth edition of the A.M.A., Guides, he opined that appellant had 13 

percent permanent impairment of the right lower extremity and 11 percent permanent impairment 

of the left lower extremity, totaling a combined 24 percent permanent impairment of the bilateral 

lower extremities. However, while Dr. Maislos found in subsequent evaluations that he had an 

additional three percent permanent impairment of the bilateral lower extremities due to ongoing 

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

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

2.808.5(a) (March 2017); see alsoid. at Chapter 3.700.2 and Exhibit 1 (January 2010).

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

A Contemporary Model of Disablement.

9

Id. at 494-531.

10 Id. at 515-22.

11 See supra note 7 at Chapter 2.808.6(f) (March 2017); see S.H., Docket No. 20-0253 (issued June 17, 2020).
7

treatment of his symptoms, he did offer adequate medical rationale based on the A.M.A., Guides

to support his impairment rating.12

OWCP properly routed the report of Dr. Maislos to a DMA, Dr. Harris, and provided him 

with a January 22, 2020 SOAF, which indicated that appellant previously was found to have a total 

of “32 percent and a 24 percent bilateral permanent impairment of the lower extremities.” In a 

September 21, 2020 report, the DMA reviewed Dr. Maislos’report and agreed with his impairment 

ratings of 13 percent permanent impairment of appellant’s right lower extremity and 11 percent 

permanent impairment of his left lower extremity. However, the record indicates that, by decisions 

dated November 23, 2016 and August 29, 2018, OWCP granted appellant schedule awards for a 

total of 29 percent permanent impairment of the right lower extremity and 27 percent permanent 

impairment of the left lower extremity.

It is OWCP’s responsibility to provide a complete and proper frame of reference for a 

physician by preparing a SOAF.13 OWCP’s procedures dictate that when a DMA, second opinion 

specialist, or referee physician renders a medical opinion based on a SOAF which is incomplete 

or inaccurate, or does not use the SOAF as the framework in forming his or her opinion, the 

probative value of the opinion is seriously diminished or negated altogether. 14 OWCP did not 

provide the DMA with an accurate SOAF as it did not accurately list the schedule awards appellant 

had previously received for his bilateral lower extremities. Thus, the Board finds that 

September 21, 2020 report ofthe DMA was not based on an accurate factual framework and cannot 

represent the weight of the medical evidence.15

Once OWCP undertakes to develop the medical evidence, it has the responsibility to do so 

in a manner that will resolve the relevant issues in the case.16 Accordingly, the Board finds that 

the case must be remanded to OWCP. On remand, OWCP shall prepare a complete and accurate 

SOAF and request that Dr. Harris, the DMA, submit a supplemental report regarding appellant’s 

bilateral lower extremity permanent impairment. Following this and other such further 

development as deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

12 See D.B., Docket No. 17-1526 (issued April6, 2018); Linda Beale, 57 ECAB 429 (2006).

13 C.E., Docket No. 19-1923 (issued March 30, 2021); M.B., Docket No. 19-0525 (issued March 20, 2020); J.N., 

Docket No. 19-0215 (issued July 15, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005)

14 R.W., Docket No. 19-1109 (issued January 2, 2020); Federal (FECA) Procedure Manual, Part 3 -- Medical, 

Requirements for Medical Reports, Chapter 3.600.3 (October 1990).

15 M.B., supra note 13; G.C., Docket No 18-0842 (issued December 20, 2018).

 

16 M.B.,Docket No. 21-0060 (issued March17, 2022); D.S., Docket No. 19-0292 (issued June21, 2019).
8

ORDER

IT IS HEREBY ORDERED THAT October 6 and 23, 2020 decisions of the Office of 

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

consistent with this decision of the Board.

Issued: October 7, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board