United States Department of Labor

Employees’ Compensation Appeals Board

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B.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Honolulu, HI, Employer

__________________________________________

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Docket No. 21-0702

Issued: March 25, 2022

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 April 1, 2021 appellant, through counsel, filed a timely appeal from a February 26, 

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 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,following the February26, 2021decision, OWCP received additional evidence. 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 established more than two percent permanent 

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

extremity, for which she received schedule award compensation. 

FACTUAL HISTORY

On February 14, 2011 appellant, then a 52-year-old custodian, filed an occupational disease 

claim (Form CA-2) alleging that she developed a bilateral plantar fasciitis condition due to factors 

of her federal employment, including excessive walking and standing. She first became aware of 

her condition and that it was caused or aggravated by her federal employment on March 25, 2010. 

OWCP accepted the claim for bilateral plantar fibromatosis and paid appellant appropriate 

intermittent wage-loss compensation on its supplemental compensation rolls as of March 10, 2011. 

By decision dated May 31, 2013, OWCP terminated herwage-loss compensation benefits effective 

that day. In 2016, appellant relocated to Nevada and continued to work full time as a custodian 

for the employing establishment.

On December 24, 2013 appellant filed a claim for compensation (Form CA-7) for a 

schedule award. By decision dated February 26, 2015, OWCP granted her a schedule award for 

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

impairment of the left lower extremity. The period of the award ran for 11.52 weeks from 

January 31 through April 21, 2014. The schedule award was based on the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides).4

On September 4, 2018 appellant filed a Form CA-7 for an increased schedule award. 

In a March 6, 2019 report, Dr. Mesfin Seyoum, a family medicine specialist, noted 

appellant’s history of injury, reviewed clinical studies and conducted a physical examination. He 

provided impressions of plantar fibromatosis of the bilateral feet. Utilizing the diagnosis-based 

impairment (DBI) methodology under Table 16-2, page 501 of the sixth edition of the A.M.A, 

Guides, Dr. Seyoum found that appellant had two percent permanent impairment of both lower 

extremities. For each lower extremity, he assigned Class 1, grade C impairment with a default 

value of one percent impairment for the class of diagnosis (CDX) of plantar fasciitis (plantar 

fibromatosis). Dr. Seyoum found grade modifier for functional history (GMFH) of 2, grade 

modifier for physical examination (GMPE) of 2, and grade modifier for clinical studies (GMCS) 

of 1. He calculated a +2 grade modifier adjustment under the net adjustment formula,

5 which 

resulted in a grade E or two percent permanent impairment of each lower extremity. 

On July 9, 2020 OWCP referred appellant to Dr. Brandon Snead, a Board-certified 

physiatrist, for a second opinion examination. In a report dated August 14, 2020, Dr. Snead noted 

his review of her medical history and medical records along with a statement of accepted facts 

(SOAF) and noted his examination findings, which included that she provided limited effort on 

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

5

(GMFH - CDX) (2-1) + (GMPE – CDX) (2-1) + (GMCS - CDX) (1-1) equals 2 net adjustment.
3

ankle range of motion (ROM) testing.6 He indicated that appellant’s bilateral plantar fasciitis 

(disorder)/plantar fascial fibromatosis had reached maximum medical improvement (MMI) as of 

August 14, 2020. Referring to Table 16-2 of the A.M.A., Guides, Dr. Snead assigned Class 1, 

grade C impairment with a default value of one percent impairment for a CDX of plantar fasciitis, 

fibromatosis. For both the right and the left lower extremity, he found a GMFH 1, GMPE not 

applicable, and GMCS 0. Using the net adjustment formula, Dr. Snead found a net adjustment of 

-1,7 which equated to Class 1, grade B or 1 percent permanent impairment for both the right and 

the left lower extremities. 

In a September 17, 2020 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon 

serving as the district medical adviser (DMA), found that the date of MMI was August 14, 2020, 

the date of Dr. Snead’s second opinion examination. The DMA concurred with Dr. Snead’s 

impairment rating of one percent permanent impairment for each lower extremity based on the 

DBI methodology. He further found that the A.M.A., Guides did not allow for an alternative ROM 

impairment calculation based on the accepted conditions. Since the present impairment did not 

exceed the prior award of two percent permanent impairment to each lower extremity, the DMA 

found that no additional impairment was due to either extremity. 

By decision dated October 22, 2020, OWCP denied appellant an increased schedule award. 

This was based on the August 14, 2020 clinical findings of Dr. Snead and the September 17, 2020 

report of Dr. Katz, serving as DMA, who opined that she had one percent permanent impairment 

of each extremity, which was less than the two percent permanent impairment previously awarded 

on February 26, 2015. 

On October 27, 2020 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

By decision dated December 16, 2020, an OWCP hearing representative set aside OWCP’s 

October 22, 2020 schedule award decision as there was no evidence that OWCP had forwarded

Dr. Seyoum’s March 6, 2019 impairment report to the DMA. The hearing representative requested 

that OWCP amend the SOAF to include all pertinent facts and refer it along with all relevant 

medical records, including Dr. Seyoum’s March 6, 2019 impairment rating, to its DMA to 

calculate appellant’s lower extremity impairments under the reprinted 2009 version of the sixth 

edition of the A.M.A., Guides. 

On December 28, 2020 OWCP issued an updated SOAF and referred the case back to its 

DMA for clarification. In a December 30, 2020 report, Dr. Katz, again serving as the DMA, 

reviewed appellant’s medical record, including the updated SOAF and Dr. Seyoum’s March 6, 

2019 report. He advised that no discrepancies were noted with respect to the Dr. Seyoum’s final 

percentage of two percent permanent impairment for the right lower extremity and two percent 

permanent impairment for the left lower extremity. Dr. Katz opined, however, that, under Table 

16-6, the GMFH should be more appropriately characterized as 1 as opposed to 2. The DMA 

noted that he earlier accepted the report of Dr. Snead, which recommended one percent permanent 

impairment for both the right and the left lower extremities for the identical key factor. He 

6 Dr. Snead took three measurements with a goniometer of ankle ROM for both the right and left foot. 

7

(GMFH - CDX) (1-1) + (GMCS - CDX)(0-1) = -1.
4

explained that the difference lay in the assignment of grade modifiers and calculation of net 

adjustment, which was intrinsically somewhat subjective. The DMA accepted Dr. Seyoum’s 

report as it would extend the doubt to appellant for the additional one percent permanent 

impairment for the left lower extremity based upon the grade modifier assignment. He indicated, 

however, that the point was moot as neither Dr. Snead nor Dr. Seyoum found an additional award 

for either the right lower extremity or the left lower extremity greater than that previously awarded. 

The DMA then recommended two percent right lower extremity permanent impairment with a 

date of MMI of March 6, 2019 and one percent left lower extremity permanent impairment with a 

date of MMI of August 14, 2020. The DMA further found that, as the present impairment did not 

exceed the prior award of two percent permanent impairment for both extremities, no increased 

award was due. 

By decision dated February 26, 2021, OWCP denied appellant’s claim for an increased 

schedule award. It found that she currently had one percent permanent impairment for her left 

lower extremity, which was a one percent decrease from her previously awarded two percent 

impairment, and two percent permanent impairment for her right lower extremity, which was zero 

percent increase from her previously awarded two percent impairment. OWCP accorded the 

weight of the medical evidence to its DMA’s report of December 30, 2021. 

LEGAL PRECEDENT

The schedule award provisions of FECA and its implementing regulations 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. 8 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.9 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).10

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 foot, the relevant portion of the leg for the present case, reference 

is made to Table 16-2 (Foot and Ankle Regional Grid -- Lower Extremity Impairments) beginning 

on page 501.11 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, 

8

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

9

20 C.F.R. § 10.404;E.S., Docket No. 20-0559 (issued October 29, 2020);see also RonaldR. Kraynak, 53 ECAB 

130 (2001).

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

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

11 Supra note 5 at 501-08.
5

GMPE, and GMCS. The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS 

- CDX).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

It is well established that benefits payable under 5 U.S.C. § 8107(c) are reduced by the 

period of compensation paid under the schedule for an earlier injury if: (1) compensation in both 

cases is for impairment of the same member or function or different parts of the same member or 

function; and (2) the latter impairment in whole or in part would duplicate the compensation 

payable for the preexisting impairment.14

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the 

physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician who shall make an examination.”

15

ANALYSIS

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

The Board finds that a conflict exists in the medical opinion evidence between Dr. Seyoum 

and Dr. Snead regarding the grade modifiers to be assigned for appellant’s accepted plantar 

fibromatosis condition, Class 1 impairment, under Table 16-2 of the A.M.A., Guides. Dr. Seyoum 

assigned a GMFH of 2, GMPE of 2, and a GMCS of 1. Dr. Snead, however, assigned a GMFH of 

1, GMPE of not applicable, and a GMCS of 0. 

Dr. Katz advised that he did not find any discrepancies with respect to Dr. Seyoum’s final 

percentage of two percent permanent impairment for the right lower extremity and two percent 

permanent impairment for the left lower extremity. He opined, however, that the GMFH, which

Dr. Seyoum noted for both lower extremities was 2, but should be more appropriately 

characterized as 1. The DMA noted that he had earlier accepted Dr. Snead’s impairment findings 

of one percent permanent impairment for both the right and the left lower extremities for the 

identical key factor. He explained that the difference between the impairment reports of

Dr. Seyoum and Dr. Snead lay in the assignment of grade modifiers and calculation of net 

adjustment, which was intrinsically subjective. The DMA then accepted an additional one percent 

permanent impairment for the left lower extremity. However, he offered no explanation as to why 

the right lower extremity was not also allowed the additional one percent permanent impairment 

12 Id. at 515-22. 

13 See supra note 10 at Chapter 2.808.6(f) (March 2017). See also D.L., Docket No. 20-1016 (issued December 8, 

2020); P.W., Docket No. 19-1493 (issued August 12, 2020); Frantz Ghassan, 57 ECAB 349 (2006).

14 20 C.F.R. § 10.404(d). See D.P., Docket No .19-1514 (issued October 21, 2020); S.M., Docket No. 17-1826 

(issued February 26, 2018).

15 5 U.S.C. § 8123(a).
6

despite the fact that Dr. Seyoum had assigned the same grade modifier for both the left and the 

right lower extremities. As there is an unresolved conflict in the medical evidence, the case must 

be remanded to OWCP for referral to an impartial medical examiner (IME) for resolution of the 

conflict in accordance with 5 U.S.C. § 8123(a).16

On remand OWCP shall refer the case record, the SOAF, and appellant to a specialist in 

the appropriate field of medicine, to serve as an IME, for a reasoned opinion regarding the extent 

of appellant’s permanent impairment of her lower extremities. Following this and any other such 

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

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the February 26, 2021 decision 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: March 25, 2022

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

16 Id.