United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.B., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Miami, FL, Employer

__________________________________________

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Docket No. 18-1670

Issued: March 22, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 4, 2018 appellant filed a timely appeal from a May 29, 2018 merit decision 

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.

2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the May 29, 2018 decision, 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 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 16

percent permanent impairment of the left lower extremity, for which she previously received 

schedule award compensation.

FACTUAL HISTORY

On April 11, 2006 appellant, then a 53-year-old transportation security screener, filed a 

traumatic injury claim (Form CA-1) alleging that, on February 3, 2006, she injured her back, chest, 

and left ankle lifting heavy bags while in the performance of duty. OWCP accepted the claim for 

lumbar sprain, a sprain of the sternum, lumbar spinal stenosis, and left ankle sprain. Appellant 

stopped work on February 17, 2006 and did not return. OWCP paid her wage-loss compensation 

for total disability.

On December 20, 2006 appellant underwent a left ankle synovectomy and debridement of 

the joint with a partial bone resection.

By decision dated August 11, 2009, OWCP reduced appellant’s wage-loss compensation,

effective August 30, 2009, based on its determination that she had the capacity to earn wages as 

an accounting clerk. Appellant elected to receive retirement benefits from the Office of Personnel 

Management in lieu of workers’ compensation benefits, effective January 10, 2010. 

By decision dated March 4, 2010, OWCP granted appellant a schedule award for nine 

percent permanent impairment of the left lower extremity. By decision dated June 21, 2012, it 

granted her an additional schedule award, finding that she had a total of 16 percent permanent 

impairment of the left lower extremity.3

Appellant subsequently filed claims for an increased schedule award (Form CA-7), which 

OWCP denied by decisions dated February 4, 2014 and October 13, 2015.4

On July 28, 2017 appellant filed a claim for an increased schedule award (Form CA-7).

By development letter dated August 7, 2017, OWCP requested that appellant submit an 

impairment evaluation from her attending physician in accordance with the sixth edition of the 

 

3 OWCP indicated that it had awarded appellant an additional 9 percent permanent impairment of the left lower 

extremity, or 17 percent total permanent impairment of the left lower extremity. However, it paid her schedule award 

compensation for an additional 7 percent permanent impairment of the left lower extremity, 20.16 weeks of schedule 

award compensation, for a total left lower extremity impairment of 16 percent. OWCP’s medical adviser had 

determined that appellant was entitled to an additional seven percent permanent left lower extremity impairment, and 

thus it appears that OWCP’s finding that she had an additional nine percent left lower extremity impairment was a

typographical error.

4 By decision dated February 28, 2014, OWCP denied appellant’s request for reconsideration of the merits of its 

February 4, 2014 decision as she had not raised an argument or submitted evidence sufficient to warrant reopening 

her case for further merit review under 5 U.S.C. § 8128(a). 
3

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

Guides)

5

addressing the extent of her permanent impairment. 

By decision dated October 23, 2017, OWCP denied appellant’s claim for an increased 

schedule award. It found that she had not submitted evidence demonstrating greater permanent 

impairment than the 16 percent previously awarded for the left lower extremity. 

In a January 15, 2018 impairment evaluation, Dr. Robert H. Sheinberg, Board-certified in 

reconstructive rear-foot/ankle surgery, related that appellant had left ankle pain with limited 

motion and diffuse swelling. He found an antalgic gait and indicated that x-rays revealed stage IV 

osteoarthritis. Dr. Sheinberg diagnosed severe left ankle osteoarthritis, subtalar joint with 

calcaneus in varus, genu recurvatum to compensate, and chronic pain. He related that appellant 

had no dorsiflexion of the left ankle and that it was “fixed in almost plantar flexion.” Dr. Sheinberg 

recommended surgery. He found that, under the A.M.A., Guides, appellant had class 3 impairment 

based on her severe left foot and ankle deformity, which yielded 49 percent permanent impairment 

of the left lower extremity.

Appellant, on February 23, 2018, requested reconsideration. 

On March 14, 2018 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as 

an OWCP district medical adviser, reviewed the medical record and noted that Dr. Sheinberg had 

not identified the diagnosis or referred to specific tables of the A.M.A., Guides in his finding that 

appellant had 49 percent left lower extremity impairment. He advised that Table 16-2 on page 506 

of the A.M.A., Guides, the foot and ankle regional grid, did not provide 49 percent as a possible 

permanent impairment rating for ankle arthritis and ankyloses. Dr. Katz further noted that the 

record did not contain x-rays showing the loss of cartilage interval as required under the A.M.A., 

Guides to assess impairment due to arthritis. He recommended that OWCP obtain a supplemental 

report from Dr. Sheinberg.

On March 21, 2018 OWCP requested that Dr. Sheinberg provide a supplemental report 

referencing the applicable tables and pages of the A.M.A., Guides that he used in reaching his 

impairment rating. He did not, however, respond to OWCP’s request. 

OWCP, on April 26, 2018, referred appellant to Dr. Clinton G. Bush, III, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine the extent of her employmentrelated permanent impairment. 

In a report dated May 18, 2018, Dr. Bush discussed appellant’s history of a work injury 

moving baggage on February 3, 2006. He noted that a magnetic resonance imaging (MRI) scan 

of the left ankle obtained on February 28, 2006 showed evidence of probable prior fractures and 

end-stage arthritis at the tibiotalar joint with “osteophyte formation and full thickness articular 

cartilage loss.” Dr. Bush further found that a lumbar MRI scan dated February 28, 2006 revealed 

degenerative disc disease with disc protrusions and osteophyte formation. He reviewed appellant’s 

symptoms of back pain with intermittent radiation into the right lower extremity and occasional 

radiation into the left lower extremity and left ankle pain with reduced motion. Dr. Bush noted 

 

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

that she had fractured her left ankle at the age of 15 and had undergone an open reduction and 

internal fixation. 

On examination Dr. Bush measured normal left ankle plantar flexion, a loss of dorsiflexion,

a loss of inversion and eversion, and found swelling “consistent with a combination of osteophyte 

formation, effusion, and synovitis.” He diagnosed a resolved thoracic wall injury, advanced and 

diffuse lumbar and lower thoracic spine degenerative disc disease and facet arthritis, resolved 

lumbosacral strain, resolved left ankle sprain/strain, severe post-traumatic arthritis of the left ankle, 

and right shoulder pain. Dr. Bush related that appellant had sustained soft tissue injuries to her 

back and left ankle on February 3, 2006 that should have resolved within six to eight weeks of the 

injury. He found that appellant had an essentially normal examination of the lumbar spine. 

Dr. Bush opined that her left ankle strain or sprain that had occurred on February 3, 2006 had 

“fully resolved leaving the claimant with her preexisting diagnosis of post-traumatic left ankle 

arthritis secondary to her ankle fracture at age 15.” He concluded that appellant had no permanent 

impairment of the left ankle causally related to the February 3, 2006 employment injury. Dr. Bush

further indicated that she had no spinal impairment.

By decision dated May 29, 2018, OWCP denied modification of its October 23, 2017 

decision. It found that Dr. Bush’s report constituted the weight of the evidence and established 

that appellant was not entitled to an increased schedule award.

LEGAL PRECEDENT

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

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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.8 As of May 1, 2009, the 

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

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish greater than 16

percent permanent impairment of the left lower extremity, for which she previously received 

schedule award compensation.

OWCP accepted that appellant sustained a left ankle sprain, lumbar sprain, lumbar spinal 

stenosis, and a sprain of the sternum due to a February 3, 2006 employment injury. It awarded her 

 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9 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 3.700.2 and Exhibit 1 (January 2010). 
5

schedule awards totaling 16 percent permanent impairment of the left lower extremity as a result 

of her ankle injury. 

Appellant, on July 28, 2017, requested an increased schedule award. She submitted a 

January 15, 2018 impairment evaluation from Dr. Sheinberg, who is Board-certified in 

reconstructive rear-foot/ankle surgery. Dr. Sheinberg indicated that x-rays revealed stage IV 

osteoarthritis. He opined that appellant had 49 percent permanent impairment of the left lower 

extremity due to loss of alignment of the left ankle and reduced motion. Dr. Sheinberg, however, 

failed to refer to the specific tables and charts in the A.M.A., Guides he used in reaching his 

impairment rating. His report thus lacks the probative value necessary to determine appellant’s 

permanent impairment for schedule award purposes.10

In a May 18, 2018 report, Dr. Bush, an OWCP referral physician, diagnosed a resolved 

thoracic wall injury, advanced lumbar and lower thoracic spine degenerative joint disease and facet 

arthritis, resolved lumbar sprain, and a resolved left ankle sprain/strain. He determined that 

appellant had preexisting ankle post-traumatic arthritis due to a left ankle fracture when she was 

15 years old, noting that a left ankle MRI scan obtained on February 28, 2006 showed evidence of 

prior fractures and end-stage arthritis at the tibiotalar joint with the loss of articular cartilage and 

osteophyte formation. Dr. Bush found that appellant’s left ankle and back sprain due to her 

February 3, 2006 employment injury had resolved and that she had no permanent impairment 

resulting from her accepted employment injury.11 His opinion is based on a complete history, a 

review of the medical evidence and the results of diagnostic studies, and findings on examination, 

and thus constitutes the weight of the evidence.

12

 Accordingly, appellant has not established 

greater than the 16 percent permanent impairment of the left lower extremity previously awarded. 

On appeal appellant asserts that she informed the employing establishment of her prior 

ankle injury and advises that she lifted bags that were heavier than those she was supposed to lift. 

She asks OWCP to obtain x-rays of her left foot and lower back. As noted, however, appellant 

has the burden of proof under FECA to establish an increased schedule award.13 For the reasons 

set forth above, the Board finds that she has not met that burden of proof.

Appellant may request a schedule award or an increased schedule award at any time based 

on evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.

 

10 B.B., Docket No. 18-0782 (issued January 11, 2019).

11 M.D., Docket No. 18-0888 (issued November 29, 2018).

12 D.B., 17-0930 (issued July 11, 2018).

13 See G.S., Docket No. 18-0299 (issued June 12, 2018).
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CONCLUSION

The Board finds that appellant has not met her burden of proof to establish greater than 16

percent permanent impairment of the left lower extremity, for which she previously received 

schedule award compensation.

ORDER

IT IS HEREBY ORDERED THAT the May 29, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 22, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board