United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.S., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, Austin, TX, 

Employer

__________________________________________

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Docket No. 21-0238

Issued: June 7, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 9, 2020 appellant, through counsel, filed a timely appeal from an August 11, 

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.

ISSUES

The issues are: (1) whether appellant has more than one percent permanent impairment of 

her right lower extremity for which she previously received a schedule award; and (2) whether 

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

appellant has met her burden of proof to establish permanent impairment of her upper extremities

warranting a schedule award.

FACTUAL HISTORY

On February 2, 2017 appellant, then a 38-year-old customer service representative, filed a 

traumatic injury claim (Form CA-1) alleging that on January 27, 2017 she twisted her right ankle 

fell on her right knee and left elbow, and injured her back when her right shoe became caught on 

a rain gutter down spout while in the performance of duty. She stopped work on the date of injury. 

On December 11, 2017 OWCPaccepted the claim for right knee abrasion, sprain of the right ankle, 

and abrasion of the left elbow. It authorized wage-loss compensation from January 27 through 

April 3, 2017.

On January 3, 2018 Dr. John Muzak, an osteopath, found that appellant had reached 

maximum medical improvement (MMI) with regard to her left elbow abrasion, right knee abrasion, 

low back strain, and right ankle sprain. He found that she could work without restrictions and did 

not require further medical treatment.

On March 13, 2018 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

In support of her claim, appellant submitted a December 18, 2018 report from Dr. Lubor 

Jarolimek, an orthopedic surgeon. Dr. Jarolimek noted appellant’s history of injury on 

January 27, 2017 and related that she complained of right knee and ankle pain, and left hip pain. 

He diagnosed right knee abrasion and right ankle strain. Dr. Jarolimek found that appellant had 

reached MMI on December 18, 2018. Applying the Knee Regional Grid, Table 16-3, page 509, 

of the A.M.A., Guides for the class of diagnosis (CDX) of contusion, is a class 1 impairment due 

to loss of range of motion (ROM) with a default grade of 1,

3 Dr. Jarolimek determined that the 

grade modifier for function history (GMFH) was 1, that the grade modifier for physical 

examination (GMPE) was not applicable, and that the grade modifier for clinical studies (GMCS) 

was zero. Applying the net adjustment formula, page 521 of the A.M.A., Guides, he reached -1 

and found 2 percent permanent impairment of the right lower extremity. Dr. Jarolimek noted right 

knee ROM findings of 90 degrees flexion, and -5 degrees extension. He found that these were 

indicative of a mild ROM loss of 10 percent. In utilizing Table 16-23, page 549 of the A.M.A., 

Guides, Dr. Jarolimek opined that appellant had 20 percent permanent impairment of the right 

lower extremity due to loss of ROM.

Dr. Jarolimek then assessed appellant’s permanent impairment of the right ankle in 

accordance with the A.M.A., Guides. He found that, under Table 16-2, Foot and Ankle Regional 

Grid, page 501, appellant had a diagnosis of muscle and tendon strain, a class 1 impairment with 

a default grade of 1. Dr. Jarolimek applied the net adjustment formula to his GMFH, GMPE, and 

GMCS findings to reach a net adjustment of -1. He determined that appellant had one percent 

permanent impairment of the right ankle in accordance with the A.M.A., Guides. Dr. Jarolimek 

3 Table 16-3 of the A.M.A., Guides, page 509, provides that a history of contusion is a class 1 only if there are 

significant consistent palpatory findings, radiographic findings, or consistent motion deficits.
3

also listed her right ankle ROM as 20 degrees of dorsiflexion, 25 degrees of plantarflexion, 25 

degrees of inversion, and 15 degrees of eversion, none of which are ratable impairments.

On February 11, 2019 Dr. Morley Slutsky, a physician Board-certified in occupational 

medicine serving as the district medical adviser (DMA), reviewed Dr. Jarolimek’s impairment 

rating and recommended a second opinion examination. He noted that Dr. Jarolimek documented 

only one ROM measurement per joint movement and that this was not consistent with page 517 

of the A.M.A., Guides, which requires three measurements of the joint.

On April 12, 2019 OWCP referred appellant, a statement of accepted facts (SOAF), and a 

list of questions to Dr. James Elmer Butler, III, a Board-certified orthopedic surgeon, for a second 

opinion examination.

In his April 25, 2019 report, Dr. Butler reviewed the SOAF and described appellant’s 

history of injury. He noted that she described pain in the right ankle and knee. On physical 

examination, Dr. Butler reported normal findings in the elbows, tenderness over the lateral 

ligaments in the right ankle, and normal findings in the hips, knees, and left ankle. He listed ROM 

in the left elbow of 150, 145, and 150 degrees of flexion, and in the right lower extremity 115, 

110, and 115 degrees of flexion. Dr. Butler found that appellant had reached MMI on 

April 25, 2019. He based his impairment rating on the conditions of right knee abrasion, right 

ankle sprain, and left elbow abrasion. Applying Table 15-4, page 398 of the A.M.A., Guides,

Dr. Butler determined that appellant had no ratable impairment of the left elbow due to her 

accepted employment injury.4 He further found that, in accordance with Table 16-3, page 509 of 

the A.M.A., Guides, she had no ratable impairment of the right knee due to her accepted condition 

of abrasion. In regard to appellant’s right ankle sprain, Dr. Butler applied Table 16-2, page 501 of 

the A.M.A., Guides and found that she had a class 1 impairment. He determined that GMFH was 

0, GMPE was 1, and that GMCS was 1 and applied the net adjustment formula to reach one percent 

permanent impairment of the right lower extremity. Dr. Butler determined that the ROM method 

was not applicable as he found no objective evidence of restricted ROM.

On June 22, 2019 the DMA reviewed Dr. Butler’s report. He indicated that appellant’s 

lower extremity impairment was based on right ankle sprain as well as on right knee sprain. The 

DMA determined that appellant had one percent permanent impairment of the right lower 

extremity. He found that she had no other ratable impairment of a scheduled member or function 

of the body due to the accepted employment injury.

By decision dated July 23, 2019, OWCP granted appellant a schedule award for one 

percent permanent impairment of the right lower extremity. The award ran for 2.88 weeks during 

the period April 25 to May 15, 2019. It also found zero percent impairment of the right upper 

extremity.

On July 30, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on October 24, 2019.

4 Table 15-4 of the A.M.A., Guides, page 398, provides an impairment rating for an elbow contusion as a class 1 

impairment with residuals symptoms and consistent objective findings at MMI.
4

By decision dated December 4, 2019, OWCP’s hearing representative found that the 

DMA’s report was internally inconsistent and required clarification. She remanded for further 

development of the medical evidence.

In reports dated December 28, 2019 and January 21, 2020, the DMA clarified that 

appellant’s one percent permanent impairment of the right lower extremity was due to her accepted 

ankle sprain. He noted that application of the ROM method resulted in a non-ratable impairment, 

while the DBI estimates resulted in one percent permanent impairment. The DMA concluded that 

appellant had no other ratable impairment of a scheduled member or function of the body causally 

related to her accepted employment injury.

By decision dated January 29, 2020, OWCP found that appellant had not met her burden 

of proof to establish greater than the one percent permanent impairment of the right lower 

extremity due to the accepted condition of right ankle sprain for which she had previously received 

a schedule award. It further found that there was zero percent impairment of the right and left 

upper extremities. On February 5, 2020 appellant, through counsel, requested a telephonic hearing 

before a representative of OWCP’s Branch of Hearings and Review.

During the hearing, held on June 12, 2020, appellant testified that she continued to 

experience right knee pain as well as sharp pains in her ankle and her left knee. She noted that she 

was unable to walk for exercise, that she experienced difficulty driving, and that she felt that her 

schedule award did not adequately compensate her for her accepted conditions.

By decision dated August 11, 2020, OWCP’s hearing representative affirmed the

January 29, 2020 decision.

LEGAL PRECEDENT -- ISSUES 1 AND 2

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. FECA, however, does not 

specify the manner in which the percentage of loss of a member shall be determined. The method 

used in making such a determination is a matter which rests in the sound 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, published in 2009.7 The Board has approved the use by OWCP of the A.M.A., 

5

Supra note 1.

6

20 C.F.R. § 10.404.

7 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 Awards and Permanent Disability Claims, 

Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January2010).
5

Guides for the purpose of determining the percentage loss of use of a member of the body for 

schedule award purposes.8

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): A Contemporary Model of Disablement.

9

 Under the sixth edition, the evaluator identifies 

the impairment CDX, which is then adjusted by grade modifiers based on GMFH, GMPE, and 

GMCS.10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11 

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

diagnoses from regional grids and calculations of modifier scores.12

The A.M.A., Guides also provide that the ROM impairment methodology is to be used as 

a stand-alone rating for upper extremity impairments when other grids direct its use or when no 

other DBI sections are applicable.13 If ROM is used as a stand-alone approach, the total of motion 

impairment for all units of function must be calculated. All values for the joint are measured and 

added.14 Adjustments for functional history may be made if the evaluator determines that the 

resulting impairment does not adequately reflect functional loss and functional reports are 

determined to be reliable.15

OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus

the ROM methodology for rating of upper extremity impairments.16 Regarding the application of 

ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities, 

FECA Bulletin No. 17-06 provides in pertinent part:

“As the [A.M.A.,] Guides caution that, if it is clear to the evaluator evaluating loss 

of ROM that a restricted ROM has an organic basis, three independent 

measurements should be obtained and the greatest ROM should be used for the 

determination of impairment, the CE [claims examiner] should provide this 

information (via the updated instructions noted above) to the rating physician(s).

“Upon initial review of a referral for upper extremity impairment evaluation, the 

DMA should identify (1) the methodology used by the rating physician (i.e., DBI 

or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,] 

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

9 A.M.A., Guides(6th ed. 2009), p.3, section 1.3.

10 Id. at 494-531.

11 Id. at 411.

12 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V.,Docket No. 10-1827 (issued April1, 2011).

13 Supra note 9 at 461.

14 Id. at 473.

15 Id. at 474.

16 FECA Bulletin No. 17-06 (issued May 8, 2017).
6

Guides identify a diagnosis that can alternatively be rated by ROM. If the A.M.A., 

Guides allow for the use of both the DBI and ROM methods to calculate an 

impairment rating for the diagnosis in question, the method producing the higher 

rating should be used.”

17

 (Emphasis in the original.)

The Bulletin further advises:

“If the rating physician provided an assessment using the ROM method and the 

[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA 

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the CE.”

18

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.19

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.20

ANALYSIS -- ISSUE 1

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

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

schedule award. 

In support of her claim, appellant submitted a December 18, 2018 report from

Dr. Jarolimek to support her claim for a schedule award where he reviewed her history of injury 

and conducted an examination. Dr. Jarolimek noted diagnoses of right knee abrasion and ankle 

strain. He found one percent impairment of the right lower extremity due to right ankle strain. 

Dr. Jarolimek further found two percent impairment of the right lower extremity due to knee 

contusion with consistent motion deficits. However, he also provided one ROM measurement for 

each motion of the right knee and ankle to reach impairment ratings for loss of ROM of the right 

knee and ankle.

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

February 11, 2019 report, the DMA noted that Dr. Jarolimek had not provided three measurements 

of each movement of the joints as required by page 517 of the A.M.A., Guides. The Board has 

17 Id.

18 Id.; see also; V.L., Docket No. 18-0760 (issued November 13, 2018);A.G., Docket No. 18-0329 (issued 

July 26, 2018).

19 See supra note 7 at Chapter 2.808.6(f) (March 2017).

20 See supra note 7 at Chapter 2.808.6(f) (March 2017).
7

held that, when an attending physician’s report gives an estimate of permanent impairment, but it 

is not based on proper application of the A.M.A., Guides, OWCP may follow the advice of the 

DMA if he or she has properly applied the A.M.A., Guides.

21

 The DMA recommended a second 

opinion examination to properly evaluate appellant’s permanent impairment in accordance with 

the A.M.A., Guides.

OWCP referred appellant to Dr. Butler for a second opinion in accordance with the 

recommendation of the DMA. In his April 25, 2019 report, Dr. Butler determined that appellant 

had no ratable loss of ROM; therefore, the DBI was the appropriate basis for evaluation of her 

permanent impairment for schedule award purposes. He found that she had no ratable impairment 

of her right knee due to the accepted contusion and agreed with Dr. Jarolimek that she had one 

percent permanent impairment of her right ankle due to her accepted strain.

OWCP again properly referred the evidence of record to Dr. Slutsky, the DMA who 

concluded in his December 28, 2019 and January 21, 2020 reports that appellant had one percent 

permanent impairment of the right lower extremity which was due to her accepted ankle sprain. 

The DMA properly applied the A.M.A., Guidesto the physical examination findings of Dr. Butler. 

He noted that the physical examination of record did not establish ROM deficits. Drs. Slutsky, 

Butler, and Jarolimek recommended the same grade modifiers and provided a calculation of the 

net adjustment formula to reach one percent permanent impairment of appellant’s right lower 

extremity due to her accepted right ankle strain. The Board finds that the DMA and Dr. Butler 

accurately summarized the relevant medical evidence, provided a summary of findings on 

examination, and reached conclusions regarding appellant’s condition which comported with the 

findings and with the appropriate provisions of the A.M.A., Guides. The reports of Dr. Butler and 

the DMA, therefore, carry the weight of the medical evidence and establish that appellant has one 

percent permanent impairment of her right lower extremity.22

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met her burden of proof to establish permanent 

impairment of her upper extremities warranting a schedule award.

In his December 18, 2018 report, Dr. Jarolimek, appellant’s treating physician, did not 

provide an impairment rating in accordance with the sixth edition of the A.M.A., Guides.

In his April 25, 2019 report, Dr. Butler, the second opinion physician, reported normal 

findings in the elbows. He listed ROM in the left elbow of 150, 145, and 150 degrees of flexion, 

and in the right lower extremity 115, 110, and 115 degrees of flexion. Dr. Butler applied Table 

15-4, page 398 of the A.M.A., Guides, and determined that appellant had no ratable impairment 

of the left elbow due to her accepted employment injury.23 

21 M.J.,Docket No. 20-1264 (issued February 16, 2021); J.D.,Docket No. 19-0414 (issued August19, 2019); P.L.,

Docket No. 17-0355 (issued June 27, 2018); Ronald J. Pavlik, 33 ECAB 1596 (1982).

22 M.J., id.; F.T., Docket No. 16-1236 (issued March 12, 2018).

23 Table 15-4 of the A.M.A., Guides, page 398, provides an impairment rating for an elbow contusion as a class 1 

impairment with residuals symptoms and consistent objective findings at MMI.
8

In his June 22, 2019 report, the DMA properly applied the A.M.A., Guides to the physical 

examination findings of Dr. Butler and found that appellant had no ratable upper extremity 

impairment. As noted previously, the Board has held that, when an attending physician’s report 

gives an estimate of permanent impairment, not based on proper application of the A.M.A., 

Guides, OWCP may follow the advice of the DMA if he or she has properly applied the A.M.A., 

Guides.

24

 The Board, thus, finds that the DMA and Dr. Butler accurately summarized the relevant 

medical evidence, provided a summary of findings on examination, and reached conclusions 

regarding appellant’s condition, which comported with the findings and with the appropriate 

provisions of the A.M.A., Guides. The reports of Dr. Butler and the DMA, therefore, represent 

the weight of the medical evidence.25

As the medical evidence of record is insufficient to establish permanent impairment of her 

upper extremities, the Board finds that appellant has not met her burden of proof. 

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 one 

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

schedule award. The Board further finds that appellant has not met her burden of proof to establish 

permanent impairment of her upper extremities warranting a schedule award.

24 Supra note 21.

25 Id.
9

ORDER

IT IS HEREBY ORDERED THAT the August 11, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 7, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board