United States Department of Labor

Employees’ Compensation Appeals Board

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A.P., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, COLEMAN FEDERAL 

CORRECTIONAL COMPLEX, Coleman, FL, 

Employer

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Docket No. 22-1246

Issued: April 25, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 22, 2022 appellant filed a timely appeal from a July 25, 2022 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.

ISSUE

The issue is whether appellant met his burden of proof to establish a greater than five 

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

schedule award.

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On September 12, 2015 appellant, then a 35-year-old correctional officer, filed a traumatic 

injury claim (Form CA-1) alleging that on that date he sustained injuries to his right hip buttock, 

back, neck, left shoulder, and feet, as well as a mild concussion, blurred vision, and dizziness, 

when a hatch door gave way causing him to slip and fall in the performance of duty. He stopped 

work that day. OWCP accepted the claim for concussion with loss of consciousness, cervical, 

lumbar and pelvic sprains, L4-5 intervertebral disc displacement, lumbar herniated disc with 

radiculopathy, herniated cervical discs at C4-5 with radiculopathy, right knee chondromalacia, and 

right ankle tibiofibular ligament sprain.

2

 

In an August 14, 2020 report, Dr. William Dinenberg, a Board-certified orthopedic surgeon 

serving as a second opinion physician, noted appellant’s accepted conditions. Regarding 

appellant’s right ankle, he reported that appellant had chronic thinning of the anterior talofibular 

ligament noted on magnetic resonance imaging scan and tenderness over the anterior talofibular 

ligament to palpation. 

In a permanent impairment rating examination report dated December 22, 2020,

Dr. Mark A. Seldes, a Board-certified family practitioner, noted appellant’s accepted conditions, 

reviewed appellant’s diagnostic testing reports, and related appellant’s physical examination 

findings. He advised that appellant reached maximum medical improvement (MMI) in regard to

his lumbar radiculopathy and right ankle injury as of December 22, 2020. Dr. Seldes used

Table 16-2, page 501 of the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides)

3

to rate appellant’s right ankle permanent 

impairment for the diagnosis of anterior talofibular ligament strain. He for the class of diagnosis 

(CDX) of anterior talofibular ligament strain, appellant had a class 1 impairment. Dr. Seldes

assigned a grade modifier for functional history (GMFH) of 2 and a grade modifier for physical 

examination (GMPE) of 2. He noted that a grade modifier for clinical studies (GMCS) was not 

assigned. Using the net adjustment formula resulted in a net adjustment of +2 or grade severity E. 

This resulted in seven percent permanent impairment for a class 1 diagnosis with grade E severity. 

Using Table 16-20 and Table 16-22, page 549, Dr. Seldes he also calculated appellant’s 

impairment using range of motion (ROM) methodology. He found 18 degrees plantar flexion 

resulted in 7 percent lower extremity permanent impairment, 8 degrees dorsiflexion resulted in 7

percent lower extremity permanent impairment, 10 degrees eversion resulted in 2 percent lower 

extremity permanent impairment, and 7 degrees inversion resulted in 5 percent lower extremity 

permanent impairment, resulting in a total 21 percent right lower extremity permanent impairment. 

Next, Dr. Seldes calculated appellant’s permanent impairment for the diagnosis of lumbar spine 

with radiculopathy in the right S1 nerve root using The Guides Newsletter, Rating Spinal Nerve 

Extremity Impairment (July/August 2009) (The Guides Newsletter). He identified the CDX as S1 

radiculopathy and assigned a class 1 impairment. Dr. Seldes assigned a GMFH of 2 as appellant 

2 OWCP assigned the present claim OWCP File No. xxxxxx572. Under OWCP File No. xxxxxx666, it accepted 

the occupational disease claim for lumbar intervertebral disc displacement and lumbar intervertebral disc disorders 

with radiculopathy. In a letter dated December 8, 2017, OWCP informed appellant that it had administratively

combined OWCP File Nos. xxxxxx666 and xxxxxx572, with the latter serving as the master file. 

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

had an American Academy of Orthopedic Surgeons lower limb questionnaire scoring in the 

moderate deficit range. He further found that a GMPE was not used. Dr. Seldes reported a GMCS 

of 2 as the nerve conduction velocity and electromyography tests showed evidence of lumbar 

radiculopathy with right S1 nerve root involvement. He applied the net adjustment formula, 

resulting in a net adjustment of +2, which raised the default CDX grade value of C to E, 

corresponding to four percent permanent impairment of the lower extremity for sensory 

impairment. Dr. Seldes noted that there was mild motor deficit at Grade E, which equaled five 

percent permanent impairment. He added the percentages for a total of nine percent permanent 

impairment of the right lower extremity due to S1 radiculopathy. Lastly, Dr. Seldes combined the 

two lower extremity impairments of 21 percent right lower extremity impairment for right ankle 

and foot loss of ROM with 9 percent permanent impairment for right S1 lumbar radiculopathy, 

resulting in a total of 28 percent right lower extremity permanent impairment.

Appellant elected to receive benefits from the Office of Personnel Management in lieu of 

FECA compensation, effective May 1, 2021. 

On May 8, 2021 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. 

On July 13, 2021 OWCP referred appellant’s case, along with a statement of accepted facts 

(SOAF), for a schedule award impairment rating to Dr. Michael Katz, a Board-certified orthopedic 

surgeon, serving as the district medical adviser (DMA). In a July 14, 2021 report, Dr. Katz 

reviewed the medical record and SOAF. He recommended that OWCP obtain a second opinion

permanent impairment evaluation by a Board-certified physiatrist for an assessment of appellant’s 

right ankle ROM and spinal nerve deficits. 

On April 20, 2022 OWCP referred appellant along with a SOAF, to Dr. Omar David 

Hussamy, a Board-certified orthopedic surgeon, for a second opinion examination and rating of 

permanent impairment using the sixth edition of the A.M.A., Guides. 

In a May 6, 2022 report, Dr. Hussamy summarized the medical reports of record. He 

provided findings following physical examination of appellant’s right ankle/foot and right lower 

extremity. Dr. Hussamy noted radiation of pain to the right lower extremity and right ankle pain, 

otherwise no right ankle objective findings. He referred to Table 16-2 of the Foot and Ankle 

Regional grid,

4

and determined that, for the CDX of joint instability/ligamentous laxity, appellant 

had a class 0 impairment due to no significant objective abnormal muscle or tendon injury findings, 

resulting in a zero percent permanent impairment. Next, Dr. Hussamy found a zero percent 

permanent impairment using the ROM method and Table 16-22.

5

 Regarding right S1 

radiculopathy, he noted that, based on The Guides Newsletter, appellant had a class 1 spinal nerve 

impairment for S1 mild motor deficit with a default value of three percent. Dr. Hussamy assigned 

a GMFH of 2, a GMPE of 1, and a GMCS of 1. Using the net adjustment formula, he calculated 

a net adjustment of +1, which moved the default value from Grade C to Grade D, which equaled 

four percent permanent impairment for motor deficits and a one percent permanent impairment for 

4 A.M.A., Guides 502.

5

Id. at 549.
4

sensory deficits. Combining the sensory and motor deficits for the S1 nerve root resulted in a total 

of five percent right lower extremity permanent impairment. 

On May 24, 2022 OWCP referred the case back to DMA Dr. Katz for a permanent 

impairment rating. In a report dated May 27, 2022, Dr. Katz reviewed the SOAF and

Dr. Hussamy’s May 6, 2022 report. Using Table 16-2, page 501 of the A.M.A., Guides, for the 

CDX of joint instability/ligamentous laxity, he identified a class 0 impairment for no significant 

abnormal objective right ankle findings with a default value 0. Dr. Katz found no net adjustment 

and result of 0 percent right lower extremity permanent impairment. Next, using the DBI method 

of The Guides Newsletter, he identified class 1 impairment for the S1 spinal nerve with mild 

sensory deficit for a default value of one percent. Dr. Katz assigned a GMFH of 2, a GMPE of 1, 

and a GMCS of 1. Using the net adjustment formula, he calculated a net adjustment of +1, which 

moved the default value from Grade C to Grade D, which equaled a one percent permanent 

impairment. Next, Dr. Katz identified a class 1 impairment for S1 mild motor deficit with a default 

value of three percent. He assigned a GMFH of 2, a GMPE of 1, and a GMCS of 1. Using the net 

adjustment formula, Dr. Katz calculated a net adjustment of +1, which moved the default value 

from Grade C to Grade D, which equaled four percent permanent impairment for motor deficits 

and one percent impairment for sensory deficits. Combining the sensory and motor deficits for 

the S1 nerve root resulted in a total of five percent right lower extremity permanent impairment. 

Dr. Katz noted that the ROM methodology was not applicable, and indicated that appellant reached 

MMI on May 6, 2022, the date of Dr. Hussamy’s report. He concurred with Dr. Hussamy’s 

assessment of no permanent impairment for appellant’s right foot/ankle, and five percent 

permanent impairment for S1 spinal nerve right lower extremity permanent impairment.

By decision dated June 6, 2022, OWCP granted appellant a schedule award for five percent 

right lower extremity permanent impairment. The period of the award ran from May 6 to 

August 14, 2022. 

In a follow-up medical evaluation dated June 20, 2022, Dr. Seldes reiterated examination 

findings from his prior report. 

In a June 21, 2022 report, Dr. Seldes reviewed Dr. Hussamy’s May 6, 2022 report and 

appellant’s assertion that Dr. Hussamy did not use a goniometer in measuring appellant’s right 

ankle ROM. He noted his disagreement with Dr. Hussamy’s, finding no right ankle ROM deficits. 

On June 27, 2022 appellant requested reconsideration of the June 6, 2022 schedule award 

decision. 

On July 11, 2022 OWCP again referred the case to DMA Dr. Katz for review of the newly 

submitted medical evidence. In a July 14, 21022 report, Dr. Katz reviewed the medical record and 

SOAF. He opined that Dr. Hussamy’s measurement of a right ankle normal arc of motion would 

not necessitate subsequent measurement as it was normal, and therefore, would be the best of any 

3 measurements used in the calculation. Dr. Katz also opined that Dr. Hussamy’s examination 

findings were more consistent with the examination findings of Dr. Dinenberg. He therefore 

opined that his earlier opinion regarding impairment remained unchanged.
5

By decision dated July 25, 2022, OWCP denied modification of its June 6, 2022 decision 

denying appellant’s schedule award claim. 

LEGAL PRECEDENT

The schedule award provisions of FECA6and its implementing regulations

7

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 determination is a matter which rests in the sound discretion of OWCP. For 

consistent results and to ensure equal justice, good administrative practice necessitates 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 2009.8 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

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning Disability 

and Health (ICF)): A Contemporary Model of Disablement.

10

 In determining permanent 

impairment of 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.

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, GMPE, and GMCS. The net adjustment formula 

is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 Under Chapter 2.3, evaluators are 

directed to provide reasons for their impairment rating of choices, including choices of diagnoses 

from regional grids and calculations of modifier scores.13

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404.

8 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 id. at Chapter 3.700, Exhibit 1 (January 2010).

9 D.M., Docket No. 21-1209 (issued March 24, 2022); L.E., Docket No.20-1505 (issued June 7, 2021); P.R., Docket 

No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

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

11 See A.M.A., Guides 501-08, Table 16-2.

12 Id. at 515-22.

13 Id. at 23-28.
6

Neither FECA, nor its implementing regulations, provide for the payment of a schedule 

award for the permanent loss of use of the back/spine or the body as a whole.14 However, a 

schedule award is permissible where the employment-related spinal condition affects the upper 

and/or lower extremities.15 The sixth edition of the A.M.A., Guides provides a specific 

methodology for rating spinal nerve extremity impairment in The Guides Newsletter. It was 

designed for situations in which a particular jurisdiction, such as FECA, mandated ratings for 

extremities and precluded ratings for the spine. The FECA-approved methodology is premised on 

evidence of radiculopathy affecting the upper and/or lower extremities. The appropriate tables for 

rating spinal nerve extremity impairment are incorporated in the Federal (FECA) Procedure 

Manual.16

Section 8123(a) of FECA provides in 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.”

17

 In situations where there exist 

opposing medical reports of virtually equal weight and rationale, and the case is referred to an IME 

for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well 

rationalized and based upon a proper factual background, must be given special weight.18

ANALYSIS

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

Regarding appellant’s right ankle permanent impairment, the Board notes that the A.M.A., 

Guides caution that most lower extremity impairments are rated based on the DBI methodology if 

the impairment class is described by the diagnosis. ROM is primarily used as a physical 

examination adjustment factor and is only used to determine actual impairment values when it is 

not possible to otherwise define impairment.19 

With regard to appellant’s accepted right anterior talofibular ligament strain, Dr. Seldes, in 

his December 22, 2020 report, found that under Table 16-2 appellant had a class 1 impairment for 

the diagnosis. Dr. Seldes assigned a GMFH of 2 and a GMPE of 2. He noted that no grade 

modifier was assigned for GMCS. Using the net adjustment formula Dr. Seldes related that a net 

adjustment of +2 resulted in a grade severity E, seven percent permanent impairment. He also 

opined that appellant had 21 percent permanent impairment of the right lower extremity right 

anterior talofibular ligament strain based on the ROM methodology. In a report dated May 6, 

2022, Dr. Hussamy, OWCP’s referral physician, calculated zero percent permanent impairment 

14 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); C.S., Docket No. 19-0851 (issued November 18, 2019).

15 Supra note 8 at Chapter 2.808.5c(3) (March 2017).

16 Supra note 8 at Chapter 3.700, Exhibit 4 (January 2010); B.M., Docket No. 19-1069 (issued November 21, 2019).

17 5 U.S.C. § 8123(a).

18 D.C., Docket No. 20-0897 (issued August 11, 2021); D.M., Docket No. 18-0746 (issued November 26, 2018);

R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 1010 (1980).

19 A.M.A., Guides 497. 
7

using the DBI method under Table 16-2, page 502. He determined that appellant had a class 0 

impairment due to no significant objective abnormal muscle or tendon injury findings, resulting in 

zero percent permanent impairment. Next, Dr. Hussamy found zero percent permanent 

impairment using the ROM method and Table 16-22.20 

With regard to right S1 nerve root impairment, Dr. Seldes found four percent permanent 

impairment of the right lower extremity for sensory deficit and five percent permanent impairment 

for motor deficit, resulting in nine percent permanent impairment of the right lower extremity due 

to S1 radiculopathy. However, Dr. Hussamy calculated four percent permanent impairment of the 

lower extremity for motor deficit and one percent permanent impairment for sensory deficit, 

resulting in a total of five percent right lower extremity permanent impairments of right anterior 

talofibular ligament strain. 

The Board therefore finds that a conflict in the medical evidence exists between Dr. Seldes, 

appellant’s treating physician, and Dr. Hussamy, OWCP’s referral physician, regarding whether 

appellant had permanent impairment of the right lower extremity greater than the five percent 

previously awarded.

Therefore, the case must be remanded to OWCP for referral of appellant to an independent 

medical examiner for resolution of the conflict in medical opinion evidence in accordance with 5 

U.S.C. § 8123(a). After such further development as OWCP deems necessary, it shall issue a 

de novo decision.

CONCLUSION

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

20 Id. at 549.
8

ORDER

IT IS HEREBY ORDERED THAT the July 25, 2022, decision of the Office of Workers’

Compensation Programs is set aside, and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: April 25, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board