United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Southeastern, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-517
Issued: January 3, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 14, 2009 appellant filed a timely appeal from a September 30, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than 25 percent permanent impairment of the left
leg and whether he has ratable permanent impairment of the right leg.
FACTUAL HISTORY
On April 27, 1999 appellant, then a 42-year-old laborer and custodian, injured his back
when he was jolted from his seat while driving equipment at work. The Office accepted his
claim for aggravation of lumbar strain and expanded his claim to include aggravation of lumbar
disc displacement and authorized lumbar surgery on June 15, 1999 and March 28, 2000.1
1

Appellant was initially treated with back pain, diagnosed with a recurrent disc herniation at L5-S1. The record
indicates that appellant underwent nonwork-related lumbar decompression surgery, performed January 21, 1999.

Appellant stopped work on April 27, 1999 and returned to part-time light duty on July 3, 2000
and full-time limited duty on June 20, 2007.
Appellant was treated by Dr. Robert A. Ruggiero, Jr., a Board-certified orthopedist, who
on March 28, 2000 performed a decompression discectomy at L5-S1, laminectomy at L4-5,
posterior lumbar fusion at L5-S1 and posterolateral transverse process fusion at L5-S1.
Dr. Ruggiero diagnosed spondylolisthesis at L5-S1 with discogenic pain at L5-S1 and lumbar
radiculopathy at L5-S1. In subsequent reports, he noted that appellant was progressing well and
diagnosed status post lumbar fusion, left L5 chronic radiculopathy and neuropathic pain.
On September 16, 2008 appellant filed a claim for a schedule award. He submitted an
April 3, 2008 report from Dr. David Weiss, an osteopath, who found appellant had reached
maximum medical improvement on April 3, 2008. Dr. Weiss noted that lumbar spine
examination revealed a well-healed surgical scar over the posterior midline and a surgical scar
over the right posterior superior iliac spine. Range of motion was restricted on forward flexion,
backward extension, left lateral flexion and right lateral flexion. The sitting root sign was
positive on the left at 35 degrees and straight leg raising was positive on the left at 65 degrees,
with both producing radicular pain down the left leg. The extensor hallucis longus was normal
on the right and 3/5 on the left. Manual muscle testing of the legs revealed quadriceps and
gastrocnemius were measured at 4/5 on the left and 5/5 on the right, sensory examination
revealed sensory deficit over the L5 and S1 dermatomes of the left leg and gastrocnemius
circumferential measurements revealed 43 centimeters on the right and 40 centimeters on the
left. Dr. Weiss diagnosed chronic post-traumatic lumbosacral strain and sprain, recurrent
herniated nucleus pulposus at L5-S1, lumbar radiculopathy, post-traumatic facet joint syndrome,
aggravation of preexisting lumbar spine pathology, herniated nucleus pulposus at L5-S1 with
prior surgeries, spondylolisthesis at L5 over S1 with discogenic pain at L5-S1 and status post
pain management with facet joint injections.
Dr. Weiss noted that, based on the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment,2 (A.M.A., Guides) appellant had combined
left leg impairment of 35 percent comprised of 8 percent impairment on the left for Grade 4
motor strength deficit of the left quadriceps muscle,3 5 percent impairment on the left for Grade
4 motor strength deficit of the left gastrocnemius muscle,4 18 percent impairment on the left for
Grade 3 motor strength deficit of the left extensor hallucis longus,5 4 percent impairment for
Grade 2 sensory deficit of the left L5 nerve root,6 and 4 percent impairment for Grade 2 sensory

2

A.M.A., Guides (5th ed. 2001).

3

Id. at 424, Table 15-16, Table 15-18.

4

Id.

5

Id.

6

Id. at 424, Table 15-15, 15-18.

2

deficit of the left S1 nerve root.7 Dr. Weiss also found three percent pain-related impairment of
the right lower extremity.8
On October 17, 2008 appellant was treated by Dr. Ruggiero in follow-up for low back
pain status post L5-S1 lumbar fusion. Dr. Ruggiero noted findings upon physical examination of
pain with forward flexion, normal range of motion of the hips, weak left extensor hallucis longus
and negative straight leg raises. He diagnosed status post L5-S1 fusion and continued permanent
light-duty work.
The Office referred Dr. Weiss’ report to an Office medical adviser who, in a
December 27, 2008 report, found that appellant had 25 percent impairment of the left leg. The
Office medical adviser noted that Dr. Weiss’ recommendation for the left leg was based on
weakness of the quadriceps, gastrocnemius, left extensor hallucis longus and sensory deficit of
the left L5 and S1 nerve root. However, he found that Dr. Ruggiero’s October 17, 2008
examination, which documented weakness only to the left extensor hallucis longus, was the
weight of the evidence as he was the operating physician. The medical adviser further noted that
the quadriceps muscle would not be involved because only L5 and S1 nerve roots were affected,
not the L4 nerve root. He further noted that pain-related impairment of three percent was not
appropriate based on section 18.3a, page 570 of the A.M.A., Guides. The medical adviser
calculated a four percent impairment for a Grade 2 sensory deficit or pain in the distribution of
the L5 nerve of the left lower extremity,9 four percent impairment for a Grade 2 sensory deficit
or pain in the distribution of the S1 nerve of the left lower extremity,10 and 18 percent
impairment for Grade 3 motor deficit of the L5 nerve.11 He stated that pursuant to the Combined
Values Chart appellant had 25 percent impairment of the left lower extremity in accordance with
the A.M.A., Guides.12 The medical adviser noted the date of maximum medical improvement
was April 3, 2008.
By decision dated March 4, 2009, the Office granted appellant a schedule award for 25
percent permanent impairment of the left lower extremity. The period of the award was from
April 3, 2008 to August 19, 2009.
On March 9, 2009 appellant requested an oral hearing which was held on July 21, 2009.
In a decision dated September 30, 2009, the hearing representative affirmed the Office
decision dated March 4, 2009.

7

Id.

8

Id. at 574, Figure 18-1.

9

Id. at 424, Table 15-15, 15-18.

10

Id.

11

Id. at 424, Table 15-16, 15-18.

12

Id. at 604.

3

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act13 and its
implementing regulations14 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, the Act 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. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.15
ANALYSIS
On appeal, appellant contends that he is entitled to a schedule award for 35 percent
impairment of the left leg and three percent impairment of the right leg. He asserts through his
attorney that there is a medical conflict between the medical adviser and Dr. Weiss with regard
to the impairment to his left and right lower extremities. The Office accepted appellant’s claim
for aggravation of lumbar strain and expanded his claim to include aggravation of lumbar disc
displacement and authorized lumbar surgery on June 15, 1999 and March 28, 2000. The Board
finds that there is a conflict in medical opinion between the Office medical adviser and
Dr. Weiss, appellant’s treating physician, with regard to appellant’s left leg impairment.
The Office medical adviser, in a report dated December 27, 2008, advised that based on
the A.M.A., Guides appellant had 25 percent impairment of the left lower extremity. He noted
appellant was not eligible for impairment for the left leg based on weakness of the quadriceps
and gastrocnemius based on the most recent report from appellant’s surgeon, Dr. Ruggiero, in a
report dated October 17, 2008, found weakness only to the left extensor hallucis longus. The
medical adviser calculated that appellant had four percent impairment for a Grade 2 sensory
deficit or pain in the distribution of the L5 nerve of the left lower extremity,16 four percent
impairment for a Grade 2 sensory deficit or pain in the distribution of the S1 nerve of the left
lower extremity,17 and 18 percent impairment for Grade 3 motor deficit of the L5 nerve.18 By
contrast, Dr. Weiss in his report dated April 3, 2008 also applied the A.M.A., Guides and found
that appellant sustained 35 percent impairment rating for the left lower extremity. He
determined that appellant would receive 8 percent impairment for Grade 4 motor strength deficit
of the left quadriceps muscle,19 5 percent impairment for Grade 4 motor strength deficit of the
13

5 U.S.C. § 8107.

14

20 C.F.R. § 10.404.

15

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

16

Id. at 424, Table 15-15, 15-18.

17

Id.

18

Id. at 424, Table 15-16, 15-18.

19

Id.

4

left gastrocnemius muscle,20 18 percent impairment for Grade 3 motor strength deficit of the left
extensor hallucis longus,21 4 percent impairment for Grade 2 sensory deficit of the left L5 nerve
root,22 and 4 percent impairment for Grade 2 sensory deficit of the left S1 nerve root.23
Dr. Weiss determined that the work-related injury of April 27, 1999 was the competent
producing factor for appellant’s subjective and objective findings. He supported an increased
impairment rating of the left leg, noting the basis of his rating under the A.M.A., Guides, while
the Office medical adviser opined that appellant sustained no more than 25 percent permanent
impairment of the left leg pursuant to the A.M.A., Guides.
Section 8123(a) of the Act 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.”24 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.25 The Board finds that the Office should have referred appellant to an impartial
medical specialist to resolve the medical conflict regarding the extent of permanent impairment
arising from appellant’s accepted employment injury.
With regard to the right leg, the Board finds that the medical evidence is insufficient to
establish that appellant has three percent impairment for pain under Chapter 18 of the A.M.A.,
Guides. Dr. Weiss found three percent pain-related impairment of the right leg under Figure
18-1 of the A.M.A., Guides.26 The Office medical adviser opined that this was not warranted
under the A.M.A., Guides. The Board finds that Dr. Weiss did not sufficiently explain why
appellant would be entitled to pain impairment under Chapter 18 in view of the language of the
A.M.A., Guides and Board precedent. The A.M.A., Guides warns that examiners should not use
Chapter 18 to rate pain-related impairment for any condition that can be adequately rated on the
basis of the body and organ impairment rating systems given in other chapters.27 Dr. Weiss did
not explain why appellant’s right leg pain could not be appropriately rated under another chapter
of the A.M.A., Guides. The text of Chapter 18 of the A.M.A., Guides states that an explanation
should be provided in writing whenever the organ and body rating systems of the other chapters
are not adequate to rate actual impairment.28 Dr. Weiss offered no specific explanation in his
20

Id.

21

Id.

22

Id. at 424, Table 15-15, 15-18.

23

Id.

24

5 U.S.C. § 8123(a).

25

William C. Bush, 40 ECAB 1064 (1989).

26

A.M.A., Guides 574, Figure 18-1.

27

Id. at 571. See K.W., 59 ECAB 284 (2007).

28

Id. at 570. See A.K., 61 ECAB ___ (Docket No. 09-1328, issued January 11, 2010); K.H., 61 ECAB ___
(Docket No. 09-341, issued December 30, 2009).

5

report regarding why he believed that Chapter 18 was applicable to appellant’s right leg pain.
Without such explanation, Dr. Weiss’ report is insufficient to establish right leg impairment due
to pain under Chapter 18 of the A.M.A., Guides. Due to this deficiency, it is also insufficient to
create a medical conflict with the opinion of the Office medical adviser regarding the right leg.
To resolve the conflict in the medical opinion regarding the left leg, the case will be
remanded to the Office for referral of appellant to an impartial medical specialist for a
determination regarding the extent of appellant’s left leg impairment in accordance with the
relevant standards of the A.M.A., Guides. After such further development as the Office deems
necessary, an appropriate decision should be issued regarding the extent of appellant’s left leg
impairment.
CONCLUSION
The Board finds that the case is not in posture for decision with regard to appellant’s left
leg impairment as there is a conflict in the medical evidence. The Board further finds that
appellant has not established permanent impairment in his right leg.
ORDER
IT IS HEREBY ORDERED THAT the September 30, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed in part set aside in part and the case is remanded
for further action consistent with this decision.
Issued: January 3, 2011
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Anthony, TX, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-474
Issued: June 20, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 27, 2011 appellant filed a timely appeal from an August 24, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180
days has elapsed from the last merit decision dated February 8, 2011 to the filing of this appeal,
the Board lacks jurisdiction to review the merits of his claim pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for
reconsideration of his claim under 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

For OWCP decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal
of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
Appellant, a 34-year old correctional officer, injured his lower back, his right upper back,
and his right wrist and forearm on December 3, 1985 when he slipped while carrying a heavy
juice jug up a flight of stairs. He filed a claim for benefits on December 4, 1985, which OWCP
accepted for right elbow and forearm sprain, lumbar sprain and intervertebral disc disorder.
OWCP paid compensation for total disability and placed appellant on the periodic rolls.
In order to determine appellant’s current condition and ascertain whether he still suffered
residuals from his accepted conditions, OWCP referred appellant for a second opinion
examination with Dr. Randy J. Pollet, Board-certified in orthopedic surgery. In a July 8, 2010
report, Dr. Pollet reviewed the medical history and the statement of accepted facts and stated
findings on examination. He stated that, with reasonable medical probability, appellant’s
accepted lumbar strain/sprain, right elbow strain and forearm strain conditions had resolved.
Dr. Pollet advised that he still had minimal impairment and mild residual symptoms in the
lumbar spine but opined that most of these symptoms were related to age and were degenerative
in nature. He asserted that appellant’s lumbar sprain had been treated adequately and surgically
with good results. Appellant was asymptomatic as far as the right elbow, right forearm, right
shoulder and neck were concerned and his overall physical examination was quite reasonable for
his age. Dr. Pollet opined that appellant could return to his regular duty as tolerated.
On January 5, 2011 OWCP issued a notice of proposed termination of compensation to
appellant. It found that the weight of the medical evidence, as represented by the opinion of
Dr. Pollet, the second opinion physician, established that his accepted right elbow strain, right
forearm strain and lumbar sprain/strain conditions had resolved and that he had no residuals from
the December 3, 1985 work injury. OWCP allowed appellant 30 days to submit additional
evidence or legal argument in opposition to the proposed termination. Appellant did not submit
any additional medical evidence.
By decision dated February 8, 2011, OWCP terminated appellant’s compensation,
finding that Dr. Pollet’s referral opinion represented the weight of the medical evidence.
By letter dated March 14, 2011, appellant requested reconsideration. He asserted that a
neurologist could provide a more accurate evaluation than an orthopedic surgeon. Appellant
stated that he would forward a medical report from his treating neurologist.
On August 24, 2011 OWCP received a July 25, 2011 report from Dr. Howard M. Lee, Jr.,
a neurosurgeon. In this report, Dr. Lee provided extensive examination findings and concluded
that appellant’s condition had deteriorated since 2001 and he remained totally disabled.
By decision dated August 24, 2011, OWCP denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require it to review its prior decision. It stated that appellant had submitted
no new and relevant medical evidence.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.5 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.6
ANALYSIS
Appellant requested reconsideration on March 14, 2011, following the termination of his
compensation benefits. He noted that a report from his neurologist would be forthcoming. In
support of this request for reconsideration, appellant submitted the July 25, 2011 report from
Dr. Lee. This report was received by OWCP on August 24, 2011, but OWCP denied appellant’s
request for reconsideration on that date, specifically noting that it had not received any medical
evidence in support of the request for reconsideration.
As the Board’s decisions are final with regard to the subject matter appealed, it is crucial
that OWCP address all relevant evidence received prior to the issuance of its final decision.7
OWCP failed to consider relevant evidence it received prior to the issuance of the August 24,
2011 decision. This case will be remanded for a proper review of the evidence and issuance of
an appropriate de novo final decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

3

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on [her] own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

See William A. Couch, 41 ECAB 548 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the August 24, 2011 decision be set aside and the
case remanded to Office Workers’ Compensation Programs for further proceedings consistent
with this opinion.
Issued: June 20, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1416
Issued: January 6, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 8, 2009 appellant filed a timely appeal from a decision of the Office of Workers’
Compensation Programs dated April 16, 2009. Under 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 established that he sustained an injury on September 9,
2008 in the performance of duty.
FACTUAL HISTORY
Appellant, a 70-year-old custodian, filed a traumatic injury claim on September 11, 2008,
alleging that he injured his left knee on September 9, 2008 while descending a door step.
Appellant submitted a September 19, 2008 report from Dr. Timothy J. Myer, Boardcertified in orthopedic surgery, who stated that appellant sought treatment from him for an injury
which he sustained approximately two weeks previously; the injury occurred when he heard a
sudden popping sensation in his left knee while stepping off a doorstep at work. Dr. Myer

related that appellant had swelling in his knee that night, which indicated he might have acute
hemarthrosis. He stated that appellant had experienced continued pain since that time. Dr. Myer
advised that appellant had effusion and degenerative changes in his knee which produced pain on
forced extension and forced flexion. He stated that appellant had previously undergone a medial
meniscectomy on the left knee. Dr. Myer asserted that x-rays taken recently indicated a stable
collapse of the medial compartment compared with x-rays taken when he underwent total knee
arthroplasty several years ago. He diagnosed possible internal derangement, with a possible
anterior cruciate ligament (ACL) tear and scheduled appellant for a magnetic resonance imaging
(MRI) scan.
Appellant also submitted reports dated September 9 and 11, 2008 from a physician’s
assistant.
On February 18, 2009 the Office advised appellant that it required additional factual and
medical evidence to determine whether he was eligible for compensation benefits. It asked him
to submit a comprehensive medical report from his treating physician describing his symptoms
and the medical reasons for his condition, and an opinion as to whether his claimed condition
was causally related to his federal employment. The Office requested that appellant submit the
additional evidence within 30 days.
In a January 30, 2009 report, Dr. Myer advised that the results of a January 23, 2009 MRI
scan showed a torn ACL with known compartmental changes and a possible medial meniscus
tear. He stated that appellant’s cardiologist informed him that remedial surgery presented too
great a risk because of his cardiac condition. Dr. Myer indicated that he would administer
conservative treatment for the left knee, which included giving appellant an ACL brace to
provide stability and decrease pain.
In a February 10, 2009 report, Dr. Myer noted that appellant was having continuing
problems with the left knee, with progressively worsening pain. He reiterated the previously
stated diagnosis of ACL tear, degenerative joint disease and possible medial meniscal tear.
Dr. Myer indicated that he would consider a total joint replacement procedure. He opined that
appellant was no longer capable of doing his previous work duties.
By decision dated April 16, 2009, the Office denied appellant’s claim, finding that he failed
to submit sufficient medical evidence in support of his claim that he sustained a left knee injury
in the performance of duty on September 9, 2008.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged, and that any disability and/or specific condition for which

1

5 U.S.C. § 8101-8193.

2

compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.4 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.5 The medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.7
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.8 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
The Office accepted that appellant experienced left knee pain while stepping from a
doorstep on September 9, 2008. The question of whether an employment incident caused a
personal injury can only be established by probative medical evidence.9 Appellant has not
submitted rationalized, probative medical evidence to establish that the September 9, 2008
2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

John J. Carlone, 41 ECAB 354 (1989).

5

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

6

Id.

7

See Joe T. Williams, 44 ECAB 518, 521 (1993).

8

Id.

9

John J. Carlone, supra note 4.

3

employment incident that caused a personal injury would have been competent to cause the
claimed injury.
Dr. Myer submitted reports dated September 19, 2008, January 30 and February 10, 2009
in which he stated findings on examination and indicated that appellant had a torn ACL,
degenerative joint disease and a possible torn medial meniscus in his left knee. These reports,
however, did not relate the diagnoses to the September 9, 2008 incident at work. The weight of
medical opinion is determined by the opportunity for and thoroughness of examination, the
accuracy and completeness of physician’s knowledge of the facts of the case, the medical history
provided the care of analysis manifested and the medical rationale expressed in support of stated
conclusions.10 Dr. Myer stated in his September 19, 2008 report that appellant had experienced a
sudden popping sensation, followed by constant pain and swelling in his left knee, as a result of
the September 9, 2008 work incident. He also noted that he showed pain on examination with
forced extension and forced flexion. Dr. Myer noted that appellant had previously undergone a
medial meniscectomy and advised that recently taken x-rays showed a stable collapse of the
medial compartment. He had appellant undergo an MRI scan on January 23, 2009 which
revealed a torn anterior cruciate ligament, degenerative joint disease and a possible medial
meniscus tear. Dr. Myer stated in his January 30, 2009 report that he would attempt to provide
conservative treatment. In his February 10, 2009 report, he related that appellant was
experiencing progressively worsening pain in the left knee and stated that he would consider
total joint replacement procedure.
Although Dr. Myer presented diagnoses of appellant’s condition, he did not adequately
address how these conditions were causally related to the September 9, 2008 work incident. The
medical reports of record did not explain how medically appellant would have sustained a left
knee injury because he stepped down from a doorstep, nor did Dr. Myer indicate how appellant’s
preexisting left knee condition might have been aggravated by the September 9, 2008 work
incident. Appellant did not provide a rationalized, probative medical opinion relating his current
condition to factors of his employment. He has not provided a medical report from a physician
that explains how the work incident of September 9, 2008 caused or contributed to the claimed
left knee injury.11
The Office advised appellant of the evidence required to establish his claim. Appellant
did not provide a medical opinion which describes or explains the medical process through
which the September 9, 2008 work accident would have caused the claimed injury. Accordingly,
he did not establish that he sustained a left knee injury in the performance of duty. The Office
properly denied appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a left knee injury
in the performance of duty.
10

See Anna C. Leanza, 48 ECAB 115 (1996).

11

The Board notes that the reports from a physician’s assistant which appellant submitted do not constitute
medical evidence pursuant to section 8101(2).

4

ORDER
IT IS HEREBY ORDERED THAT the April 16, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: January 6, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

2

IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
DEPARTMENT OF THE AIR FORCE,
64 MSS/MSC, REESE AIR FORCE BASE, TX,
Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-468
Issued: August 8, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge

JURISDICTION
On December 11, 2006 appellant filed a timely appeal from merit decisions of the Office
of Workers’ Compensation Programs dated August 3 and November 21, 2006 which denied his
claim. Pursuant to 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 that he sustained an
employment-related hand or emotional condition as a consequence of his accepted employment
injuries.
FACTUAL HISTORY
On June 28, 1994 appellant, then a 43-year-old materials handler leader, sustained an
employment-related cervical strain and left rotator cuff sprain while lifting boxes at work. He
returned to his regular duties. On July 9, 1996 appellant filed a Form CA-2, occupational disease
claim, that was accepted for a right shoulder injury as a consequence of the left. On August 23,

1996 he was granted a schedule award for a 10 percent permanent impairment of the left upper
extremity. Appellant stopped work on December 2, 1996 and returned to work for four hours a
day on April 28, 1997. On June 25, 1997 he began working eight hours per day. Appellant
voluntarily retired effective July 3, 1997 and received a $25,000.00 separation incentive.
By decision dated July 6, 1998, the Office found that appellant’s actual earnings fairly
and reasonably represented his wage-earning capacity. On August 6 and September 15, 1998
and April 18, 2000 he requested reconsideration of the July 6, 1998 decision and in merit
decisions dated August 25, 1998, April 13 and May 1, 2000, the Office denied modification of
the July 6, 1998 decision.
On November 9, 2000 appellant was granted a schedule award for a 15 percent
permanent impairment of the right upper extremity and an additional 12 percent for the left upper
extremity. On January 23 and March 12, 2001 he requested reconsideration of the November 9,
2000 schedule award and, in decisions dated February 13 and May 26, 2001, the Office denied
his reconsideration requests.
On November 14, 2002 the Office referred appellant to Dr. Dennis A. Ice, a Boardcertified physiatrist, for a second opinion evaluation. In a report dated December 12, 2002,
Dr. Ice noted his review of appellant’s medical history and current complaints of nonradiating
neck and back pain. He provided examination findings and diagnosed fibromyalgia syndrome
including chronic pain and disability syndrome, depression and poor sleep hygiene. Dr. Ice
advised that appellant had a significant depressive overlay which could possibly cause
fibromyalgia “due to loss of income or inability to work.” On January 27, 2003 the accepted
conditions were expanded to include aggravation of myalgia and myositis. On March 19, 2004
appellant filed a schedule award claim and on May 17, 2004 filed a Form CA-2a, recurrence
claim, noting that his pay stopped on July 4, 1997.
Appellant came under the care of Dr. C. Michel Oliva, an anesthesiologist who practices
pain management. He diagnosed low back pain with radiation, neck pain with radiation and
fibromyalgia. A May 6, 2004 magnetic resonance imaging (MRI) scan of the cervical spine
demonstrated cervical spondylosis with mild canal stenosis. Lumbar spine MRI scan
demonstrated lumbar spondylosis with a tear at L4-5. On July 23, 2004 appellant requested
compensation for his hands and depression. In support of this claim, he submitted a June 1, 2004
report in which Michael D. Boyd, a licensed social worker, reported a history that appellant had
been depressed since 1996 when his fibromyalgia began. Mr. Boyd diagnosed alcohol
dependence and depression, not otherwise specified, without anxiety. In a June 14, 2004 report,
Dr. Eugene F. Luckstead, a Board-certified internist, diagnosed uncontrolled hypertension,
asthma, chronic pain syndrome, depression and degenerative joint disease.
On July 6, 2004 the Office referred appellant to Dr. Don Leon Fong, Board-certified in
orthopedic surgery, for a second opinion evaluation. A July 26, 2004 decision from the
Department of Veterans Affairs (VA) indicated that appellant had a 30 percent service-related
disability of his right shoulder. In a July 31, 2004 report, Dr. Fong noted his review of the
medical record and statement of accepted facts. Upper extremity examination demonstrated no
evidence of motor or sensory deficit, muscle atrophy or arthritic process. Dr. Fong diagnosed
bilateral rotator cuff sprain and cervical strain caused by the employment injury, and low back

2

pain, fibromyalgia, chronic pain and depression and aggravation of myalgia and myositis which,
he opined were not employment related.
By decision dated September 16, 2004, the Office denied appellant’s claim that he
sustained an employment-related depression or injury to his hands. On November 10, 2004
appellant requested reconsideration of the September 16, 2004 decision and submitted reports
from Dr. Oliva who performed cervical facet injections on September 16, 2004. In reports dated
September 28 and October 19, 2004, Dr. Oliva advised that appellant had a “significant amount
of pathology” as seen on his MRI scan that caused debilitating radiculopathy to the upper
extremity and into his hands, advising “I do feel that this is a secondary finding to the initial type
of injury. These are related to each other.” In an October 7, 2004 report, Mr. Boyd noted
appellant’s complaints of chronic pain and depression and his report that appellant had seen a
psychiatrist for four to five months in the 1980s and was prescribed medication. He diagnosed
depression.
On November 29, 2004 the Office proposed to terminate appellant’s medical benefits for
aggravation of myalgia/myositis and, by letter dated January 3, 2005, informed him that he
would have to elect between a schedule award and VA benefits for his right upper extremity
impairment. By decision dated January 12, 2005, the Office finalized the proposed termination
of medical benefits for myalgia/myositis and noted that the claim remained open for treatment of
appellant’s bilateral sprain/strain of his shoulders, rotator cuffs and neck. On January 12, 2005
appellant elected VA benefits for his right shoulder condition.
By report dated January 19, 2005, Dr. Oliva advised that he did not feel that appellant
had fibromyalgia but rather had disc pathology in the lumbar and cervical spine, all of which
began when he was injured at work. A May 16, 2005 MRI scan of the lumbar spine
demonstrated disc bulges at L3-4, L4-5 and L5-S1.
On August 4, 2005 appellant was granted a schedule award for an additional four percent
permanent impairment of his left upper extremity. In an August 5, 2005 decision, the Office
denied modification of the September 16, 2004 decision. Appellant, through his congressional
representative, requested reconsideration and submitted a December 28, 2005 treatment note in
which Dr. Oliva noted upper extremity examination findings of good strength and no muscle
wasting. Dr. Oliva reiterated his diagnosis of neck pain with upper extremity radiculopathy and
recommended repeat facet injections. By decision dated August 3, 2006, the Office denied
modification of the prior decisions regarding appellant’s claimed hand and emotional conditions.
On August 29, 2006 appellant requested reconsideration and submitted an August 14, 2006
treatment note in which Dr. Oliva again noted appellant’s complaints of neck and upper
extremity pain which he opined were “directly related to the pathology” seen on MRI scan.
Appellant also resubmitted the May 6, 2004 MRI scan of the cervical and lumbar spine. In a
November 21, 2006 decision, the Office denied modification of the prior decisions.
LEGAL PRECEDENT
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary

3

injury, the rules that come into play are essentially based upon the concepts of direct and natural
results and of claimant’s own conduct as an independent intervening cause. The basic rule is that
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.1
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.2 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.3 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.4
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he has a
hand or an emotional condition as a consequence of his accepted employment injuries, cervical
sprain and bilateral rotator cuff sprains.
Regarding the claimed hand condition, Dr. Oliva opined that appellant had significant
disc pathology in the cervical spine which began when appellant was injured at work and that
this caused debilitating radiculopathy to his upper extremities and into his hands.5 Dr. Oliva,
however, also made physical findings of good muscle strength and no muscle wasting of the
upper extremities and provided no objective evidence to show that appellant had any hand injury
caused by the employment injury of June 28, 1994. Furthermore, Dr. Oliva did not provide a
rationalized explanation as to how the lifting incident of June 28, 1994 caused appellant’s current
condition. His opinion is therefore of diminished probative value.6 Dr. Fong, who provided a
second opinion evaluation for the Office, found no evidence of motor or sensory deficit, muscle
atrophy or arthritic process in his examination of appellant’s upper extremities in July 2004. As
appellant failed to submit sufficient probative medical evidence to establish that any hand

1

Larson, The Law of Workers’ Compensation § 1300; see Charles W. Downey, 54 ECAB 421 (2003).

2

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

3

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

4

Dennis M. Mascarenas, 49 ECAB 215 (1997).

5

Dr. Oliva also opined that appellant had a lumbar condition caused by his employment injury. The Office,
however, has not accepted any condition of the lumbar spine as employment related.
6

See Leslie C. Moore, supra note 3.

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condition was a consequence of his accepted employment injuries, he failed to establish the
requisite causal relationship, and the Office properly denied this claim.7
Appellant also claimed that he sustained a consequential emotional condition and
submitted treatment notes from Mr. Boyd, a licensed social worker. The reports of a social
worker do not constitute competent medical evidence, as a social worker is not a “physician” as
defined by section 8101(2) of the Federal Employees’ Compensation Act.8 While Dr. Ice, who
performed a second opinion evaluation for the Office in 2002, advised that appellant had a
significant depressive overlay, he provided no rationale to explain if or why this condition was
caused by the employment injury.9 In a June 14, 2004 report, Dr. Luckstead diagnosed
depression. However, he did not provide a cause of the diagnosed depression and medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
diminished probative value on the issue of causal relationship.10 Dr. Fong, who provided a
second opinion evaluation in July 2004, advised that appellant’s depression was not employment
related. The Board, therefore, finds the evidence of record insufficient to discharge appellant’s
burden of establishing that his depression was a consequence of the accepted shoulder and neck
strains.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained an emotional condition or hand injury as a consequence of his accepted employment
injuries.

7

See Charles W. Downey, supra note 1.

8

5 U.S.C. § 8101(2); see Phillip L. Barnes, 55 ECAB 426 (2004).

9

Leslie C. Moore, supra note 3.

10

Ellen L. Noble, 55 ECAB 530 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 21 and August 3, 2006 be affirmed.
Issued: August 8, 2007
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-1807
Issued: May 9, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 29, 2012 appellant filed a timely appeal from a June 5, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP), which denied modification of a decision
granting appellant a schedule award. 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 the
case.
ISSUE
The issue is whether appellant has more than 23 percent permanent impairment of the left
lower extremity for which he received a schedule award.
FACTUAL HISTORY
On October 12, 2005 appellant, then a 56-year-old mail handler, was injured when he
slipped and fell at work. OWCP accepted the claim for bilateral contusion of the knees, bilateral
1

5 U.S.C. §§ 8101-8193.

knee strains, abrasion of the hip and leg and expanded his claim to include tear of the medial
meniscus of the right knee, secondary osteoarthritis of the right leg and permanent aggravation of
left knee osteoarthritis. It authorized right knee arthroscopic surgery which was performed on
February 10, 2006, a total right knee replacement was performed on July 23, 2007 and a total left
knee replacement was performed on December 2, 2008. Appellant worked intermittently
thereafter.2
Appellant was treated by Dr. Robert McGuirk, a Board-certified orthopedic surgeon, who
in August 21 and October 7, 2008 reports diagnosed traumatic arthritis of the left knee, torn left
medial meniscus and torn left lateral meniscus and recommended surgery. On December 2, 2008
Dr. McGuirk performed a left total knee arthroplasty and diagnosed traumatic arthritis of the left
knee. In reports dated March 23 to September 22, 2009, he noted that appellant experienced
persistent soreness of the medial hamstring and diagnosed probable pes anserine bursitis status
post December 2, 2008 left total knee replacement. On June 25, 2009 Dr. McGuirk administered
a lidocaine injection into the medial hamstring.
On September 3, 2009 appellant filed a claim for a schedule award. In a January 25,
2012 letter, OWCP requested that Dr. McGuirk evaluate the extent of permanent impairment of
the left leg under the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (A.M.A., Guides).3
On February 9, 2010 Dr. McGuirk noted that appellant was status post left knee
arthroplasty on December 2, 2008. Appellant reported stiffness and weakness, inability to kneel,
difficulty in bending, squatting and climbing and walking was limited to 30 minutes.
Dr. McGuirk noted varus deformity, range of motion was 125 degrees with one centimeter (cm)
of quadriceps atrophy. In a March 9, 2010 impairment worksheet, he advised that in accordance
with Chapter 16 of the sixth edition of the A.M.A., Guides appellant had 15 percent impairment
of the left leg. Dr. McGuirk explained that, under Table 16-3, Knee Regional Grid, Total Knee
Replacement, appellant was a class 3.4 Applying the net adjustment formula at pages 521-22 of
the A.M.A., Guides,5 he found that for functional history appellant was a grade 2 modifier; for
physical examination he was a grade modifier 1 pursuant to Table 16-7; and for clinical studies,
he was a grade modifier 2 pursuant to Table 16-8. Dr. McGuirk utilized the net adjustment
formula to find a net adjustment of +2. He adjusted the impairment rating, noting that appellant
2

Appellant had a right foot injury on April 22, 1984, File No. xxxxxxx237. On September 25, 1992 OWCP
granted him a schedule award for 15 percent permanent impairment of the right foot. On January 9, 2008 appellant
filed a claim for a schedule award in the present claim, File No. xxxxxx892. On August 6, 2008 OWCP granted him
a schedule award for 50 percent impairment to the right leg. On August 13, 2008 it asked its medical adviser to
clarify whether the 50 percent impairment rating granted on August 6, 2008 was in addition to or including the
15 percent impairment for the right foot schedule award from September 25, 1992 in File No. xxxxxx237. In a
September 9, 2008 note, the medical adviser indicated that the 50 percent impairment rating was separate from the
accepted impairment for the right foot granted in 1992. In an October 8, 2008 decision, OWCP found that appellant
had 58 percent total combined impairment of the right leg.
3

A.M.A., Guides (6th ed. 2008).

4

Id. at 511.

5

Id. at 521-22.

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was a grade D concluding that he had 15 percent left lower extremity impairment under the
A.M.A., Guides for left total knee replacement. In the summary section of the impairment
worksheet, Dr. McGuirk noted diagnosis-based impairment of 16 percent for the left lower
extremity and range of motion impairment of 10 percent. He stated that the final combined
impairment was 26 percent impairment of the left lower extremity and regional impairment was
64 percent.
In an April 30, 2010 report, Dr. Barry W. Levine, an OWCP medical adviser, reviewed
the medical record including Dr. McGuirk’s March 9, 2010 report. He noted that appellant
underwent a total left knee replacement on December 2, 2008 and addressed Dr. McGuirk’s
grade modifiers for functional history 2, physical examination 1, clinical studies 2 and an AAOS
score 3. The medical adviser indicated that based, on the knee grid Table 16-3, page 511,
appellant had a default impairment of 37 percent impairment of the lower extremity. He
indicated that, using the net adjustment formula on page 521, appellant was a grade D with 43
percent lower extremity impairment. The date of maximum medical improvement was
March 9, 2010.
In a December 21, 2010 report, Dr. Christopher R. Brigham, an OWCP medical
consultant, reviewed the medical record including Dr. McGuirk’s March 9, 2010 report. He
stated that there were two methodologies to be considered under the A.M.A., Guides,
diagnosis-based impairment and the range of motion method and that the greater of the two
methods should be chosen. Dr. McGuirk’s examination noted that, range of motion was 125
degrees for the left knee, there was no instability of the knee and no documentation that the
prosthesis was mal-aligned. Dr. Brigham noted that pursuant to Table 16-3, Knee Regional Grid,
appellant had a default impairment class 2 left knee, total knee replacement, which yielded a
grade C impairment of 25 percent at Table 16-3, page 511 of the A.M.A., Guides.6 Applying the
net adjustment formula at pages 521-22 of the A.M.A., Guides,7 he found that the grade pursuant
to Table 16-6 for functional history was not assigned contrary to Dr. McGuirk’s conclusion.
Dr. Brigham stated that pursuant to page 516 of the A.M.A., Guides, if the grade for functional
history differs by two or more grades from that defined by physical examination or clinical
studies, the functional history should be assumed unreliable. In this case, Dr. McGuirk assigned
a grade modifier 3 based on the AAOS score. The medical adviser noted that Dr. McGuirk’s
rating for physical examination was a grade modifier one which would make functional history
grade modifier unreliable and unusable. He noted that the grade for physical examination at
Table 16 -7 was one, for a mild problem (one cm of quadriceps atrophy); and the grade for
clinical studies pursuant to Table 16-8 was not assigned as the clinical studies were used to
confirm the diagnoses. The medical adviser utilized the net adjustment formula to find a net
adjustment of -1. He adjusted the impairment rating, findings that appellant had 23 percent left
leg impairment under the sixth edition of the A.M.A., Guides for left knee arthroplasty. The
medical adviser noted that, with regard to the range of motion methodology, the objective
findings showed that there was almost full extension and 125 degrees of flexion, which did not
meet the threshold of ratable impairment pursuant to Table 16-23, Knee Motion Impairments.
6

Id. at 509.

7

Supra note 5.

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In a decision dated March 15, 2011, OWCP granted appellant a schedule award for 23
percent impairment of the left lower extremity. The period of the award was from October 7,
2010 to January 13, 2012.
On September 4, 2011 appellant requested reconsideration. He submitted x-rays of both
knees dated April 12, 2007 to November 10, 2008 and previously of record. Appellant was
treated by Dr. McGuirk through September 22, 2011 for painful right hip pain. Dr. McGuirk
diagnosed sprain of the hip/thigh, spondylosis of the lumbar spine and possible avascular
necrosis of the right hip. He injected appellant’s right hip with lidocaine. A magnetic resonance
imaging scan of the lower extremities revealed trochanteric bursitis.
In a June 3, 2012 report, Dr. Robert Y. Pick an OWCP medical adviser, reviewed the
medical record and noted that subsequent to the December 21, 2010 report of Dr. Brigham, the
submitted medical reports related to appellant’s hip and back with no reference to the left knee.
Therefore, he found no basis to warrant a change in the prior impairment rating for the left knee.
On June 5, 2012 OWCP denied appellant’s claim for an additional schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA8 and its implementing federal regulations,9 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.10 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.11
For decisions issued beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be
used.12
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).13 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. at § 10.404(a).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

12

FECA Bulletin No. 09-03 (issued March 15, 2009).

13

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

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Clinical Studies (GMCS).14 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).15 The grade modifiers are used on the net adjustment formula described above
to calculate a net adjustment. The final impairment grade is determined by adjusting the grade
up or down the default value C, by the calculated net adjustment.16
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical consultant for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with OWCP’s medical
consultant providing rationale for the percentage of impairment specified.17
ANALYSIS
The sixth edition of the A.M.A., Guides provides that lower extremity impairments be
classified by diagnosis, which is then adjusted by grade modifiers according to the formula noted
above.18 Appellant’s accepted conditions included bilateral contusion of the knees, bilateral knee
strains, abrasion of the hip and leg and permanent aggravation of the left knee osteoarthritis.
OWCP authorized a total left knee replacement was performed on December 2, 2008. On
March 15, 2011 appellant was granted a schedule award for 23 percent permanent impairment of
the left lower extremity using the applicable table of the sixth edition of the A.M.A., Guides.
The section of the A.M.A., Guides which rates diagnosis-based impairments for the lower
extremities is located at Chapter 16, which states at page 497, section 16.2a that impairments are
defined by class and grade.
The Board has carefully reviewed Dr. McGuirk’s reports dated February 9 and March 9,
2010 and notes that he did not adequately explain how his determination was reached in
accordance with the relevant standards of the A.M.A., Guides.19 Dr. McGuirk opined that
appellant sustained 15 percent impairment of the left lower extremity in accordance with the
A.M.A., Guides. He explained that, under Table 16-3, Knee Regional Grid, Total Knee
Replacement, appellant was a class 3. Dr. McGuirk utilized the net adjustment formula to find a
net adjustment of +2.20 However, the Board notes that he did not specifically explain how he
determined that appellant qualified for class 3 under the Knee Regional Grid, especially in light
of the lack of specific findings. Rather, Dr. McGuirk noted findings of stiffness, weakness,
14

Id. at 494-531.

15

Id. at 521.

16

Id. at 497.

17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
18

Supra notes 13, 14.

19

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

20

The Board notes that Dr. McGuirk incorrectly noted the impairment rating under Table 16-3, Knee Regional
Grid, Total Knee Replacement, class 3 was 15 percent. Rather, the default (grade C) rating would be 37 percent and
the grade D rating would be 40 percent.

5

inability to kneel and difficulty in bending, squatting and climbing. Additionally, on the
permanent impairment worksheet summary, Dr. McGuirk noted diagnosis-based impairment of
16 percent for the left extremity and range of motion impairment of 10 percent for a combined
impairment of 26 percent impairment of the left upper extremity. However, Dr. McGuirk did not
explain how he calculated 16 percent diagnosis-based impairment for the left leg, which was
inconsistent with his prior finding of 15 percent diagnosis-based impairment. Further, he
included 10 percent impairment for range of motion deficit in a final combined rating of 26
percent left leg impairment but failed to provide the physical findings and calculations to support
this rating. Ratings based on range of motion impairment, when allowed under the A.M.A.,
Guides, are stand alone and cannot be combined with other approaches.21 Therefore, the Board
finds that Dr. McGuirk did not properly follow the A.M.A., Guides. An attending physician’s
report is of diminished probative value when the A.M.A., Guides are not properly followed.22
Although an April 30, 2010 report from Dr. Levine found 43 percent left leg impairment,
this report is of limited probative value. The Board notes that the medical adviser did not
adequately explain his rating in accordance with the relevant standards of the A.M.A., Guides.23
He explained that, under Table 16-3, Knee Regional Grid, Total Knee Replacement, appellant
was a class 3 with a default impairment of 37 percent.24 The medical adviser utilized the net
adjustment formula to find a net adjustment to a grade D with 43 percent leg impairment.25
However, the Board notes that he did not address any findings that supported a class 3 finding
and appeared to be repeating what Dr. McGuirk stated with regard to modifiers and appellant’s
class. Moreover, the medical adviser also combined a diagnosis-based estimate with a loss of
range of motion rating. Therefore, the Board finds that Dr. Levine did not adequately rate
impairment in conformance with the A.M.A., Guides.
OWCP referred appellant to Dr. Brigham who issued a report dated December 21, 2010.
Dr. Brigham noted that Dr. McGuirk’s examination revealed range of motion was 125 degrees
for the left knee, there was no instability of the knee and no documentation that the prosthesis
was malaligned. Based on these findings and using the formula noted above with the net
adjustment formula outlined at pages 516-18 and 521-22 of the A.M.A., Guides, under Table 163, Knee Regional Grid,26 appellant’s impairing diagnosis was total left knee replacement, which
he rated as class 2, good results (good position, stable and functions) with default impairment of
25 percent of the leg. Dr. Brigham explained that appellant was appropriately classified as class
21

A.M.A., Guides 497, 16.2 diagnosis-based impairment, which provides range of motion ratings are used
primarily as a physical examination adjustment factor and is only used to determine actual impairment values when
it is not possible to otherwise define impairment. It also provides that ratings based on range of motion cannot be
combined with other approaches.
22

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).
23

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

24

Supra note 4.

25

Grade D on page 511 for a class 3 total knee replacement is actually 40 percent impairment.

26

Supra note 3 at 509.

6

2 based on Dr. McGuirk’s examination findings, which revealed no instability of the left knee
and no documented malalignment of the prosthesis. He applied the modifiers for functional
history, physical examination and clinical studies found in Table 16-6, Table 16-7 and
Table 16-8.27 Dr. Brigham rated a functional history modifier zero, a physical examination
modifier one and zero for clinical studies. He applied the net adjustment formula to arrive at a -1
net adjustment which yields 23 percent left lower impairment under the sixth edition of the
A.M.A., Guides.28 Dr. Brigham noted that, with regard to the range of motion methodology, the
objective findings demonstrated that there was almost full extension and 125 degrees of flexion,
which did not meet the threshold of ratable impairment pursuant to Table 16-23, Knee Motion
Impairments. Dr. Pick reviewed the matter on June 3, 2012 and determined that there was no
basis for any additional impairment.29
The Board finds that the opinion of Dr. Brigham is sufficiently well rationalized and
based upon a proper factual background such that it establishes that appellant sustained 23
percent permanent impairment of the left leg. Dr. Brigham opined that to a reasonable degree of
medical certainty appellant sustained 23 percent impairment of the left lower extremity in
accordance with the A.M.A., Guides. There is no evidence which supports that appellant
sustained a higher impairment which properly utilizes the A.M.A., Guides.
As appellant did not submit any medical evidence to support an additional schedule
award greater than the 23 percent for the left lower extremity already awarded, the Board will
affirm OWCP’s June 5, 2012 decision.
Appellant may request a schedule award or increased schedule award 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 no more than 23 percent impairment of the left lower
extremity, for which he received a schedule award.

27

A.M.A., Guides 516-19.

28

Id.

29

Medical evidence submitted by appellant after the March 15, 2011 schedule award decision did not specifically
address how, under the A.M.A., Guides, he had any additional impairment of the left leg.

7

ORDER
IT IS HEREBY ORDERED THAT the June 5, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 9, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.I., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Palatine, IL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-804
Issued: July 23, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 1, 2007 appellant filed a timely appeal from March 20, 2006 and
January 18, 2007 decisions of the Office of Workers’ Compensation Programs, adjudicating her
schedule award claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this schedule award decision.
ISSUE
The issue is whether appellant has more than a six percent permanent impairment of her
right lower extremity.
FACTUAL HISTORY
On July 21, 2003 appellant, then a 39-year-old flat sorting machine mail processor clerk,
filed an occupational disease claim alleging that she experienced pain in both feet due to
standing on a concrete floor sorting mail for seven hours a day, five days a week. She first
became aware of the problem on May 31, 2003. The Office accepted appellant’s claim for mild
plantar fasciitis of her right foot. Appellant was disabled for intermittent dates beginning

July 12, 2003 and received compensation for lost wages. On May 15, 2004 she began
performing a modified mail processor clerk position. On June 9, 2004 appellant filed a claim for
a schedule award.
On March 17, 2004 Dr. Leonard R. Smith, a Board-certified orthopedic surgeon and an
Office referral physician, reviewed a history of appellant’s condition and provided findings on
physical examination. He diagnosed improved plantar fasciitis. Dr. Smith noted that appellant
experienced pain when standing for long periods of time and walking long distances. He stated:
“Examination of the right foot reveals tenderness overlying the plantar fascia….
Full passive range of motion is present in both ankles and both feet with
dorsiflexion 20 degrees, plantar flexion 50 [and] adduction to forefoot to 20
degrees. Inversion and eversion of the heel are possible at 10 degrees. Subjective
tenderness is present overlying the plantar fascia with no actual heel tenderness
noted…. The circumference of the ankles is 21½ [centimeters] bilaterally,
circumference of the bimalleolar diameter of the ankle is 29½ [centimeters]
bilaterally. In standing there is a noted flattening of the longitudinal arches. Calf
measurements are normal. There is no muscle atrophy or weakness demonstrated.
The anterior and posterior tibial pulses are normal. No trophic changes are
noted.”
Dr. Smith did not provide any impairment rating.
In an October 2, 2004 report, Dr. Jacob Salomon, an attending Board-certified general
surgeon, provided a history of appellant’s condition and findings on physical examination. He
stated:
“[Appellant] complains of swelling on and off in her ankles, numbness and
tingling along the lateral epicondyle, Achilles tendon, and the instep of the foot,
and a sharp pain along the instep in the arch of the foot. The pain is worse when
she stands long periods of time, walking more than two to three blocks starts
increasing the pain. Standing longer than 10 minutes can start increasing the
pain.”
***
“[O]n inspection of the right and left lower extremities, there [were] no
deformities, no atrophies, [no] lacerations noted. Circumference of the instep at
the right foot was 23.5 [centimeters] [and] 23 [centimeters] on the left foot.
Ankle on the right [and left] was 21 [centimeters], calf on right was 32
[centimeters] [and] on the left 30 [centimeters]. Regarding the ranges of motion
for the right ankle, [appellant] had dorsiflexion to 10 [degrees,] normal being 20,
plantar flexion to 30[,] normal being 40. Inversion was 20, normal being 30.
Eversion was to 15, normal being 20. There was some weakness of muscle
strength…. Pinwheel noticed some sensory deficit along the dorsum of the big
toe…. [T]he tibialis anterior muscle generates [the] majority of dorsiflexion and
inversion. These [dorsiflexion and inversion] were definitely weak 4/5, plantar

2

flexion was 5/5 and eversion was 5/5 on the right, which corresponds to the
diagnosis of the muscles that were injured chronically creating the weakness.
There is also no joint instability noted in the right ankle regarding the ATF
[anterior talofibular] ligament. On the sole of the foot, there was some tenderness
along the plantar fascia with also rebound tenderness noted. There was severe
pain in movement of the metatarsal bones and the plantar fascia and severe pain in
the plantar fascia on dorsiflexion and inversion.”
Dr. Salomon found that appellant had a 17 percent impairment of the right lower
extremity, including 12 percent for a Grade 4 muscle weakness of the right ankle in dorsiflexion
and five percent for ankle inversion, according to Table 17-8 at page 532 of the American
Medical Association, Guides to the Evaluation of Permanent Impairment.1
On February 4, 2005 Dr. Eric Berkson, an Office medical adviser, stated that appellant
had a 6 percent impairment of the right lower extremity,2 including 3 percent for Grade 3 pain
(40 percent) in the distribution of the medial plantar nerve and 3 percent for Grade 3 pain (40
percent) in the distribution of the lateral plantar nerve, according to Table 16-10 at page 482 and
Table 17-37 at page 552 of the A.M.A., Guides. He indicated that decreased strength could not
be rated in the setting of pain without a separate etiology and that range of motion was variable
by examination and could not therefore be rated.3
On June 28, 2005 the Office granted appellant a schedule award for 17.28 weeks4 from
May 20 to September 17, 2004 based on a six percent impairment of the right lower extremity.
On November 22, 2005 appellant requested reconsideration.
On February 13, 2006 Dr. Ravi K. Ponnappan, an orthopedic surgeon and an Office
medical adviser, stated his agreement with the six percent impairment rating. He indicated that a
Grade 3 rating of 40 percent adequately represented appellant’s subjective complaints.
Dr. Ponnappan noted that the A.M.A., Guides at page 508 provided that loss of strength could
not be rated in the presence of painful conditions without a separate etiology. He stated that
range of motion could not be accurately rated due to the variable measurements between
Dr. Smith and Dr. Salomon. Dr. Ponnappan stated that the six percent lower extremity
impairment schedule award based on residual pain complaints was accurate and appropriate
based on the medical evidence.
1

A.M.A., Guides (5th ed. 2001).

2

Dr. Berkson indicated that appellant’s impairment was to her left foot. However, this appears to be an error as
the accepted condition is right foot plantar fasciitis.
3

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (these procedures contemplate that, after obtaining all necessary medical
evidence, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the
percentage of impairment specified, especially when there is more than one evaluation of the impairment present).
4

The Federal Employees’ Compensation Act provides for 288 weeks of compensation for 100 percent loss or loss
of use of a lower extremity. 5 U.S.C. § 8107(c)(2). Multiplying 288 weeks by 6 percent equals 17.28 weeks of
compensation.

3

On March 20, 2006 the Office denied modification of the June 28, 2005 schedule award
decision. Appellant requested reconsideration and submitted an August 30, 2006 report in which
Dr. Salomon stated that a July 27, 2006 magnetic resonance imaging (MRI) scan of her right
ankle revealed a small tibiotalar and subtalar joint fusion and also an accessory os navicular
(navicular bone). Dr. Salomon indicated that the change in the angle of the subtalar joint access
caused chronic foot pain. He stated:
“[T]here [were] some biomechanical deviations of the structure of [appellant’s]
foot regarding the subtalar joint and on its axis and her gait still being abnormal
and her stance being abnormal and tenderness [along] the lateral longitudinal
arch…. An unusually large accessory navicular bone … may cause pain from
local pressure. It is frequently associated with weakness in the longitudinal arch
and a mild flatfoot deformity. In [appellant’s] case this is true. She does have an
enlarged accessory os navicular…. [T]here [are] subjective and objective
finding[s] of structural deviation and … pain and swelling…. When [appellant]
stands for prolonged periods of time which is only documented in the recent MRI
[scan] showing small … effusions of these tibiotalar, subtalar joints with the
deviation of the subtalar joint axis noted on x-rays. These objective findings
along with her subjective findings indicate that there [is] more going on with her
foot condition[;] that an impairment rating of six [percent] would not [represent]
her conditions correctly. I do feel that the os navicular is creating a persistent
pain and also that her other foot is now injured which is also causing more
pressure on to her right extremity and with the chronic swelling in the indicated
joints…. I would have to respectfully disagree with this 6 [percent] [impairment]
at this time and give [appellant] a rating different from the previous [17 percent]
impairment rating…. [Appellant] did not have any type of problems previous to
the injury with her ambulating until the injury occurred…. [T]he area of the
enlarged accessory bone caus[ed] this chronic pain…. I would have to this time
go with gait abnormality which I feel [is the rating method] that best represents
[appellant’s] condition…. There was no nerve deficit noted.
“So it is my opinion that gait would be the only substantial indication for
[appellant] to be rated, so, thereby, the rating would be utilizing gait…. From
[T]able 17-5, page 529 … [s]he did have mild narrowing of the right knee joint
and she does have now antalgic limp…. [Appellant] has … moderate to advanced
arthritic changes of the … ankle. If you would add the decreased joint space due
to the navicular and the chronic swelling, I feel that it could be used by the
treating physician to [conclude] that she does have arthritis and ongoing swelling
and the antalgic limp … to give her a rating of 5 [percent] whole person from
[T]able 17-5 [at page 529], then I would like to convert [the impairment rating] to
the lower extremity by [using] [Table] 17-3 to get a total right lower extremity
[impairment] of 10 [percent].”
On October 26, 2006 Dr. Benjamin P. Crane, an orthopedic surgeon and an Office
medical adviser, stated that he did not understand Dr. Salomon’s impairment rating. He stated
that appellant should undergo an independent medical examination by a Board-certified foot and
ankle surgeon.

4

On November 15, 2006 the Office referred appellant to Dr. Richard H. Sidell, Jr., a
Board-certified orthopedic surgeon for an examination and evaluation of her right lower
extremity.5 On December 13, 2006 Dr. Sidell provided a history of appellant’s condition and
findings on physical examination. He diagnosed a probable mild forefoot osteoarthritis of the
right foot and tendinopathy of the tibialis posterior tendon insertion into a probable accessory
navicular bone. Dr. Sidell noted that appellant was experiencing pain in the forefoot and plantar
area of the right foot. He stated:
“[Appellant] was observed walking for a distance of 40 feet without evidence of
an antalgic component to her gait. The lower extremities appeared normal to
inspection with no obvious muscle atrophy with side-to-side comparison. The
circumference of the calf measured was 14 inches bilaterally. The circumference
of the foot at the arch was 9 inches bilaterally. There was no evidence of
edema…. There was normal range of motion of both ankles with 20 to 25 degrees
of dorsiflexion and 45 to 50 degrees of plantar flexion. There was tenderness
over a prominent navicular bone on the right. There was tenderness over the 1st
[and 3rd] metatarsophalangeal joint[s] on the right. There was no tenderness over
the plantar fascia … longitudinal arch … origin of the plantar fascia and off of the
calcaneal tuberosity. There was no pain with tensioning of the plantar fascia….
There was no forefoot tenderness noted. The general arch alignment was normal.
[Appellant] was able to perform a toe stand and a heel stand and a one-legged
stand without difficulty and could perform a vertical hop of six inches without
obvious discomfort. Range of motion of all joints of the forefoot was normal.
There is no identifiable decrease in strength determined using manual motor
testing. No visible sign of muscle atrophy was identified. Neurologic
examination was normal.
“No evidence was found at this time to sustain the continuing diagnosis of mild
plantar fasciitis, right foot. It is therefore assumed that the condition has resolved.
[Appellant’s] current complaints are felt to be related to the above-mentioned
diagnoses of minimal osteoarthritis involving the metatarsophalangeal joints and
tendinopathy involving the tibialis tendon insertion….
“In determining permanent impairment[,] the [A.M.A., Guides] is utilized…. The
appropriate method to be utilized in this case would be diagnosis based under
ligament injuries. This method is selected since there are no anatomic alterations
as defined in sections 1 through 9 and no functional alterations under sections 10
through 12 which include range of motion, gait derangement and muscle strength.
Table 17-33 on page 547 allows for estimates for certain lower extremity
impairments. The closest impairment relating to [appellant’s] findings would be
under midfoot deformity with mild cavus deformity due to the objective findings
of tendinopathy involving the tibialis posterior tendon. This allows for an
impairment rating of two percent … for the [right] lower extremity. Based on my
5

Although one page of the referral documents indicates that the referral to Dr. Sidell was for the purpose of
resolving a conflict in the medical evidence, the referral letter to appellant states that Dr. Sidell was to provide a
second opinion evaluation.

5

examination of [appellant] and review of the [A.M.A., Guides, fifth edition], I can
find no justification for an award of 10 percent … opined by [appellant’s]
attending physician.”
Although Dr. Sidell based his impairment rating on the diagnosis-based rating method, on
January 10, 2007 Dr. Crane stated that appellant had a two percent impairment of her right lower
extremity based on Grade 4 pain in the distribution of the medial plantar nerve, according to
Table 16-10 at page 482 and Table 16-15 at page 492. Dr. Crane indicated that, as appellant had
previously been granted a schedule award for a six percent impairment of the right lower
extremity based on pain, she was not entitled to any additional schedule award.
By decision dated January 18, 2007, the Office denied modification of the March 20,
2006 decision.6
LEGAL PRECEDENT
The schedule award provision of the Act7 and its implementing regulation8 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, the Act 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. The A.M.A., Guides has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.9
The A.M.A., Guides provides for three separate methods for calculating the lower
extremity permanent impairment of an individual: anatomic, functional and diagnosis based.10
The anatomic method involves noting changes, including muscle atrophy, nerve impairment and
vascular derangement, as found during physical examination.11 The diagnosis-based method
may be used to evaluate impairments caused by specific fractures and deformities, as well as
ligamentous instability, bursitis and various surgical procedures, including joint replacements
and meniscectomies.12 The functional method is used for conditions when anatomic changes are
difficult to categorize, or when functional implications have been documented, and includes
6

Subsequent to the January 18, 2007 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id.

10

A.M.A., Guides, 525.

11

Id.

12

Id.

6

range of motion, gait derangement and muscle strength.13 The evaluating physician must
determine which method best describes the impairment of a specific individual based on patient
history and physical examination.14 When uncertain about which method to use, the evaluator
should calculate the impairment using different alternatives and choose the method or
combination of methods that gives the most clinically accurate impairment rating.15 If more than
one method can be used, the method that provides the higher impairment rating should be
adopted.16
ANALYSIS
The Office granted appellant a schedule award based on a six percent impairment of the
right lower extremity. The Board finds that further development of the medical evidence is
necessary to determine whether appellant has more than a six percent right lower extremity
impairment.
Dr. Salomon stated that appellant experienced swelling in her ankles, numbness and
tingling along the lateral epicondyle, Achilles tendon, and the instep of the foot, and a sharp pain
along the instep in the arch of the foot. The pain was worse when she stood for more than 10
minutes or walked more than two or three blocks. Range of motion for the right ankle included
dorsiflexion to 10 degrees, plantar flexion to 30, inversion 20 and eversion 15. Dr. Salomon
indicated muscle strength weakness in dorsiflexion and inversion. He noted that appellant
experienced severe pain in movement of the metatarsal bones and the plantar fascia and severe
pain in the plantar fascia on dorsiflexion and inversion. Dr. Salomon found that appellant had a
17 percent permanent impairment of the right lower extremity, including 12 percent for a
Grade 4 muscle weakness of the right ankle in dorsiflexion and five percent for ankle inversion,
according to Table 17-8 at page 532 of the A.M.A., Guides.
Dr. Berkson, an Office medical adviser, stated that appellant had a 6 percent impairment
of the right lower extremity, including 3 percent for Grade 3 pain (40 percent) in the distribution
of the medial plantar nerve and 3 percent for Grade 3 pain (40 percent) in the distribution of the
lateral plantar nerve, according to Table 16-10 at page 482 and Table 17-37 at page 552 of the
A.M.A., Guides. As noted, Office procedures require that the medical adviser provide rationale
for the percentage of impairment specified, especially when there is more than one evaluation of
the impairment present. Although Dr. Salomon based his impairment rating on muscle
weakness, Dr. Berkson found that appellant had right lower extremity impairment due to pain.
Dr. Berkson did not explain how he determined that her pain was a Grade 3. He also did not
explain how he selected an impairment of 40 percent from the range of 25 to 60 percent for
Grade 3 in Table 16-10. Dr. Ponnappan, another Office medical adviser, stated his agreement
with the six percent impairment rating of Dr. Berkson. Both medical advisers indicated that
decreased strength could not be rated in the setting of pain without a separate etiology, according
13

Id. at 525, Table 17-1.

14

Id. at 548, 555.

15

Id. at 526.

16

Id. at 527, 555.

7

to the text at page 508 of the A.M.A., Guides. However, page 508 in Chapter 16 of the A.M.A.,
Guides, pertains to upper extremity impairments. The chapter pertaining to lower extremity
impairment, Chapter 17, provides a cross-usage chart, at Table 17-2 at page 526 which sets forth
the various methods for rating lower extremity impairment. The chart indicates which
impairment rating methods can or cannot be combined. Muscle strength is one of several rating
methods for lower extremity impairment. According to Table 17-2, muscle strength cannot be
combined with the other methods used by the various physicians in this case, pain (peripheral
nerve injury), gait derangement (used in Dr. Salomon’s second report), or a diagnosed-based
estimate (used by Dr. Sidell). However, muscle weakness, Table 17-8 at page 532, is one
method that can be used to determine appellant’s right lower extremity impairment. Therefore,
the Office medical advisers were incorrect in disallowing the impairment rating of Dr. Salomon
based on muscle weakness.
Dr. Salomon provided a second report in which he determined that appellant had a 10
percent impairment of the right lower extremity impairment due to gait derangement according
to Table 17-5 at page 529 of the A.M.A., Guides. He indicated that he converted a five percent
whole person impairment for mild gait derangement to a 10 percent lower extremity impairment
using Table 17-3 at page 527. However, the lowest percentage specified in Table 17-5 is seven
percent, not five percent. Additionally, even if Table 17-5 provided for a 5 percent whole person
impairment, the conversion table, Table 17-3, provides that a 5 percent whole person impairment
equals a 12 to 13 percent impairment, not 10 percent.
Dr. Sidell noted that appellant was experiencing pain in the forefoot and plantar area of
the right foot. He found no atrophy or decrease in strength. Appellant had normal range of
motion. The neurologic examination was normal. Dr. Sidell opined that appellant’s accepted
mild plantar fasciitis of the right foot had resolved. However, he found a two percent right lower
extremity impairment using the diagnosis-based rating method and Table 17-33 at page 547.
Dr. Sidell found that appellant had a mild cavus deformity of the midfoot which equaled a two
percent impairment according to Table 17-33. He stated that he selected the diagnosis-based
rating method because he found no anatomic alterations such as muscle atrophy or peripheral
nerve injury and no functional alterations such as range of motion, gait derangement and muscle
strength.
The Board finds that there is a conflict in the medical opinion evidence between
Dr. Salomon and Dr. Sidell, necessitating referral to an impartial medical specialist. On remand
the Office should refer appellant to an appropriate Board-certified medical specialist for an
evaluation of her right lower extremity and an impairment rating based on correct application of
the A.M.A., Guides. The impartial medical specialist should provide medical rationale
explaining why a particular rating method was selected. If more than one impairment rating
method can be used in evaluating appellant’s impairment, the method that provides the higher
rating should be adopted.17

17

Id. at 527.

8

CONCLUSION
The Board finds that this case is not in posture for a decision. On remand, the Office
should refer appellant to an impartial medical specialist for an examination and evaluation of her
right lower extremity impairment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 18, 2007 and March 20, 2006 are set aside and the case is
remanded for further development consistent with this decision.
Issued: July 23, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

9