A.K. and Department of Justice, Bureau of Prisons (Board decision, March 31, 2021)

ECAB final decision. The Board affirmed OWCP’s denial of a schedule award above the previously awarded 13 percent left lower extremity impairment. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A.K. sought a larger schedule award for impairment of his left lower extremity. His physician rated the impairment at 51 percent using a range of motion method. OWCP’s physicians rated it at 13 percent using the diagnosis based method. The Board found that the applicable A.M.A. Guides table did not permit the range of motion method for this ankle condition. It affirmed OWCP’s finding that A.K. had no impairment above the 13 percent already awarded.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Denial of an increased left lower extremity schedule award affirmed.
• Key point: The applicable impairment table did not allow the range of motion method used to support a higher rating.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.K., Appellant
)
)
and ) Docket No. 19-1927
) Issued: March 31, 2021
DEPARTMENT OF JUSTICE, BUREAU OF
)
PRISONS, Victorville, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 17, 2019 appellant, through counsel, filed a timely appeal from a July 22, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 5 U.S.C. § 8101 et seq.
 ISSUE

The issue is whether appellant has met his burden of proof to establish greater than 13 percent permanent impairment of his left lower extremity, for which he previously received a schedule award.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.

On January 13, 2012 appellant, then a 31-year-old correctional officer, filed a traumatic injury claim (Form CA-1) alleging that he sustained an injury on January 11, 2012 when he twisted his left ankle when ascending the stairs while in the performance of duty. He did not stop work. OWCP assigned File No. xxxxxx324 and accepted this claim for left ankle sprain.

On April 29, 2013 appellant filed a Form CA-1 alleging that he sustained an injury on that date when he twisted his left ankle when descending the stairs while in the performance of duty. He stopped work on April 30, 2013. OWCP assigned File No. xxxxxx413 and accepted this claim for sprain of the lateral collateral ligament of the left ankle. It paid appellant wage-loss compensation on the daily rolls for disability from work commencing June 13, 2013.4

On December 6, 2013 appellant underwent OWCP-authorized left ankle fusion surgery. In an October 9, 2014 report, Dr. Amarilda Christensen, a Board-certified internist, described his left ankle fusion as resulting in “stable fixation and alignment with ankle joint.”

On December 29, 2014 appellant filed a claim for a schedule award (Form CA-7) due to his accepted employment conditions.

In a May 20, 2015 report, Dr. Mesfin Seyoum, a Board-certified family practitioner, discussed appellant’s factual and medical history, noting that he sustained a nonwork-related motorcycle accident in 2006, which caused a left distal fibula fracture necessitating two surgeries. He indicated that on physical examination appellant exhibited limited left ankle and subtalar range of motion (ROM). Dr. Seyoum referred to the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)5 and utilized the diagnosis- based impairment (DBI) rating method to find that, under Table 16-2 (Foot and Ankle Regional Grid), page 503, the class of diagnosis (CDX) for appellant’s left ankle fracture with necrosis of the left talus (for moderate-to-severe motion deficits and/or moderate malalignment; avascular necrosis with talar body collapse) resulted in a class 2 impairment with a default value of 22

3
Docket No. 18-0462 (issued June 19, 2018).
4
OWCP paid appellant wage-loss compensation on the periodic rolls for disability from work commencing November 17, 2013. It administratively combined File Nos. xxxxxx324 and xxxxxx413, designating the latter as the master file. 5 A.M.A., Guides (6th ed. 2009).

2 percent. He determined that appellant had a grade modifier for functional history (GMFH) of 2 and a grade modifier for physical examination (GMPE) of 3, and posited that the grade modifier for clinical studies (GMCS) was not applicable as it was utilized for class placement. Dr. Seyoum utilized the net adjustment formula, (GMFH - CDX) + (GMPE - CDX) = (2 - 2) + (3 - 2) = +1, which resulted in a grade D or 24 percent impairment of the left lower extremity.6 He indicated that appellant had reached maximum medical improvement (MMI) by the time of his examination.

OWCP referred appellant’s case along with a statement of accepted facts (SOAF), for a schedule award impairment evaluation to Dr. Leonard Simpson, a Board-certified orthopedic surgeon serving as an OWCP district medical adviser (DMA). It requested that Dr. Simpson review the medical evidence of record, including Dr. Seyoum’s May 20, 2015 report, and provide an opinion on the permanent impairment of appellant’s left lower extremity under the sixth edition of the A.M.A., Guides.

In a September 18, 2015 report, Dr. Simpson determined that appellant had 13 percent permanent impairment of his left lower extremity under the sixth edition of the A.M.A., Guides. He noted that, in an October 9, 2014 report, Dr. Christensen described appellant’s left ankle fusion as resulting in “stable fixation and alignment with ankle joint.” Dr. Simpson, therefore, found that Dr. Seyoum’s determination that appellant’s left ankle condition fell under a CDX of class 2 (per Table 16-2) was not justified by the medical evidence of record. Rather, he determined that, under Table 16-2, appellant’s left ankle condition fell under a class 1 condition (for neutral position). This class 1 condition had a default value of 10 percent. Dr. Simpson determined that appellant had a GMFH of 2 and a GMPE of 3, and he posited that the GMCS was not applicable as it was utilized for class placement. He utilized the net adjustment formula, (GMFH - CDX) + (GMPE - CDX) = (2 - 1) + (3 - 1) = +3, which resulted in a grade E or 13 percent impairment of the left lower extremity. Dr. Simpson indicated that appellant had reached MMI by May 20, 2015, the date of Dr. Seyoum’s examination.

OWCP provided Dr. Simpson with a copy of the December 6, 2013 operative report detailing appellant’s left ankle fusion surgery and requested that he provide a supplemental report after reviewing the report. On October 21, 2015 Dr. Simpson noted that he had reviewed the report and advised that it indicated, “Stable fixation and alignment achieved after subchondral fenestration.” He reported that he still felt that appellant had 13 percent permanent impairment of his left lower extremity.

By decision dated November 19, 2015, OWCP granted appellant a schedule award for 13 percent permanent impairment of his left lower extremity. The award ran for 37.44 weeks from May 20, 2015 to February 6, 2016 and was based on the impairment rating of Dr. Simpson.

On December 3, 2015 appellant, through counsel, requested a telephonic hearing with a representative of OWCP’s Branch of Hearings and Review. During the hearing held on July 6, 2016, counsel argued that Dr. Seyoum properly calculated appellant’s permanent impairment.

6
Dr. Seyoum inadvertently referenced 23 percent permanent impairment, but application of the +1 result from the net adjustment formula yields 24 percent permanent impairment.

3
 By decision dated September 12, 2016, OWCP’s hearing representative set aside the November 19, 2015 decision and remanded the case for further development of the evidence. She found that there were questions regarding the accepted employment conditions, which needed to be resolved before a determination could be made regarding appellant’s permanent impairment. The hearing representative indicated that, when Dr. Seyoum and Dr. Simpson produced their reports, it was unclear whether appellant’s case had been accepted for a sceptic necrosis of the left talus. She directed OWCP to prepare a new SOAF and to refer appellant to a second opinion examiner who would examine him and render an opinion on the permanent impairment of his left lower extremity.

On January 30, 2017 OWCP referred appellant for a second opinion examination to Dr. Michael Einbund, a Board-certified orthopedic surgeon, and requested that he provide an opinion on the permanent impairment of appellant’s left lower extremity under the sixth edition of the A.M.A., Guides. It indicated that it had not accepted that appellant sustained employment- related asceptic necrosis of the left talus and provided Dr. Einbund with a SOAF reflecting this fact.

In a March 23, 2017 report, Dr. Einbund discussed appellant’s factual and medical history, including his 2006 nonwork injury and related surgery. He reported the findings of his physical examination, noting that appellant exhibited no significant pain in his left ankle and that there was no ROM of the left ankle. Dr. Einbund indicated that there was no evidence that appellant had necrosis of the left talus. He also noted that x-ray testing showed solid fusion of the left tibiotalar joint. Dr. Einbund determined that, under Table 16-2, appellant’s left ankle condition fell under a CDX of class 0 and, therefore, he had no permanent impairment of his left lower extremity under the sixth edition of the A.M.A., Guides. He explained that appellant’s April 29, 2013 left ankle sprain had not resulted in any permanent residuals and opined that, given his nonwork-related left ankle injury in 2006, appellant would still have the same objective findings even in the absence of his April 29, 2013 left ankle sprain.

On April 18, 2017 OWCP referred appellant’s case to Dr. Michael M. Katz, a Board- certified orthopedic surgeon serving as a DMA. It requested that Dr. Katz review the medical evidence of record, including Dr. Einbund’s March 23, 2017 report, and provide an opinion regarding the permanent impairment of appellant’s left lower extremity under the sixth edition of the A.M.A., Guides.

In an April 28, 2017 report, Dr. Katz indicated that he had reviewed Dr. Einbund’s March 23, 2017 report. He asserted that, since appellant’s December 6, 2013 left ankle fusion surgery was approved by OWCP, the permanent impairment resulting from this surgery should be compensable. Dr. Katz indicated that Dr. Einbund’s impairment rating was “not probative.” He noted that, if an additional impairment evaluation was desired, an impairment evaluation should be obtained from a Board-certified orthopedic surgeon or physical medicine and rehabilitation physician who is familiar with the sixth edition of the A.M.A., Guides and OWCP’s procedures. Dr. Katz opined that Dr. Simpson’s impairment rating, calculating 13 percent permanent impairment of the left lower extremity, was “accurate and reasonable.”

By decision dated May 22, 2017, OWCP determined that appellant had no greater than 13 percent permanent impairment of his left lower extremity, for which he previously received a

4 schedule award. It noted that the impairment rating of Dr. Einbund did not show that appellant had greater permanent impairment than the 13 percent previously awarded.

On May 30, 2017 appellant, through counsel, requested a telephonic hearing with a representative of OWCP’s Branch of Hearings and Review. During the hearing, held on November 3, 2017, counsel argued that Dr. Einbund did not properly evaluate appellant’s permanent impairment under the sixth edition of the A.M.A., Guides.

By decision dated December 5, 2017, OWCP’s hearing representative affirmed OWCP’s May 22, 2017 decision. He indicated that the weight of the medical opinion evidence with respect to the permanent impairment of appellant’s left lower extremity continued to rest with the opinion of Dr. Simpson, as detailed in his September 18 and October 21, 2015 reports finding 13 percent permanent impairment.

Appellant appealed to the Board and, by decision dated June 19, 2018,7 the Board set aside OWCP’s December 5, 2017 decision and remanded the case to OWCP for further development. The Board found that the evaluation of Dr. Einbund was incomplete as he had not adequately considered all of appellant’s accepted conditions in determining whether appellant had permanent impairment of his left lower extremity. In particular, Dr. Einbund had not adequately considered whether appellant had permanent impairment related to his December 6, 2013 left ankle fusion surgery, which was authorized by OWCP. The Board remanded the case to OWCP with instructions to seek clarification from Dr. Einbund regarding the permanent impairment of appellant’s left lower extremity. The Board directed OWCP to issue a de novo decision regarding appellant’s entitlement to schedule award compensation after carrying out such development.

On September 26, 2018 OWCP referred appellant for a second opinion examination to Dr. Einbund and requested that he provide an opinion on the permanent impairment of appellant’s left lower extremity under the sixth edition of the A.M.A., Guides. It requested that he clarify whether appellant sustained permanent impairment related to his December 6, 2013 left ankle fusion surgery.

In an October 25, 2018 report, Dr. Einbund discussed appellant’s factual and medical history with respect to his left ankle, including his 2006 nonwork injury with related surgery and his January 11, 2012 and April 29, 2013 work injuries with related surgery. He reported the findings of his October 25, 2018 physical examination, noting that appellant ambulated with a limping gait and had restricted ROM of the left ankle. Appellant had normal sensation in both lower extremities and normal strength in his bilateral quadriceps, hamstrings, plantar flexors/extensors, and extensor hallucis longus muscles. Dr. Einbund indicated that appellant had a left thigh muscle atrophy measuring one centimeter and noted that x-rays revealed a solid tibiotalar fusion with hardware in place from the December 6, 2013 fusion surgery. He indicated that appellant reached MMI as of October 25, 2018, the date of his examination.

Dr. Einbund referred to the sixth edition of the A.M.A., Guides and utilized the DBI rating method to find that, under Table 16-2 on page 508, the CDX for appellant’s left ankle fusion in a neutral position resulted in a class 1 impairment with a default value of 10 percent. He assigned a

7
Supra note 3.

5
GMFH of 2 based on appellant’s limping gait in the presence of objectively defined significant pathology. Dr. Einbund assigned a GMPE of 2 based on muscle atrophy at the left thigh measuring one centimeter and arthrodesis in position of function. He found that a GMCS was not applicable as the clinical studies were used to establish the diagnostic criteria and define the class. Dr. Einbund utilized the net adjustment formula, (GMFH - CDX) + (GMPE - CDX) = (2 - 1) + (2

• 1) = +2, which resulted in a grade E or 13 percent permanent impairment of the left lower
  extremity. He further determined that the ROM impairment rating method was not applicable because Table 16-2 did not refer to the ROM impairment rating method as an alternative to the DBI rating method for appellant’s impairing condition. Dr. Einbund concluded that appellant had 13 percent permanent impairment of the left lower extremity.

  On November 13, 2018 OWCP referred appellant’s case back to Dr. Katz, serving in his
  

  role as a DMA. It requested that Dr. Katz review the medical evidence of record, including Dr. Einbund’s October 25, 2018 report, and provide an opinion regarding the permanent impairment of appellant’s left lower extremity under the sixth edition of the A.M.A., Guides.

  In a November 15, 2018 report, Dr. Katz opined that Dr. Einbund’s determination that
  

  appellant had 13 percent permanent impairment of the left lower extremity was supported by the medical evidence of record and was consistent with the methodology of the sixth edition of the A.M.A., Guides. He agreed with Dr. Einbund that the A.M.A., Guides did not allow use of the ROM impairment rating method for appellant’s impairing left ankle condition. Dr. Katz then provided a rating under the DBI method which was similar to that of Dr. Einbund. He referred to Table 16-2 and noted that the CDX for appellant’s left ankle fusion in a neutral position resulted in a class 1 impairment with a default value of 10 percent. Dr. Katz assigned a GMFH of 2 and a GMPE of 2, and found that a GMCS was not applicable. He utilized the net adjustment formula, (GMFH - CDX) + (GMPE - CDX) = (2 - 1) + (2 - 1) = +2, which resulted in a grade E or 13 percent permanent impairment of the left lower extremity. Dr. Katz found that the date of MMI was the date of Dr. Einbund’s examination, i.e., October 25, 2018.8

  By decision dated November 15, 2018, OWCP determined that appellant had not met his
  burden of proof to establish greater than 13 percent permanent impairment of his left lower extremity, for which he previously received a schedule award. It based its determination on the October 25, 2018 report of Dr. Einbund and the November 15, 2018 report of Dr. Katz.

  On July 2, 2019 appellant, through counsel, requested reconsideration of the November 15,
  2018 decision.

  Appellant submitted a May 21, 2019 report from Dr. Neil Allen, a Board-certified internist
  and neurologist, who discussed appellant’s factual and medical history, reported the findings of a May 21, 2019 physical examination, and provided a rating of the permanent impairment of appellant’s left lower extremity. He noted that appellant had an American Academy of Orthopedic Surgeons (AAOS) lower limb questionnaire score of 69 (grade modifier 1). Prior to conducting an impairment rating under the ROM impairment rating method, Dr. Allen indicated, “The [ROM

8
Dr. Katz inadvertently listed the date of Dr. Einbund’s examination as October 22, 2018, rather than the proper
date of October 25, 2018.

                                                    6

method] was found to result in a greater amount of lower extremity impairment than the [DBI] method for “Ankle Ankylosis” (20 [percent lower extremity impairment]).” He then noted that, utilizing the ROM method under Table 16-22 on page 549 of the sixth edition of the A.M.A., Guides, appellant had 51 percent permanent impairment of his left lower extremity comprised of 7 percent permanent impairment due to 0degrees of left ankle dorsiflexion, 7 percent due to 15 degrees of flexion contracture, 30 percent due to 0 degrees of plantar flexion, 5 percent due to 0 degrees of inversion, and 2 percent due to 0 degrees of eversion. Dr. Allen referenced Table 16- 16 on page 545 and opined that appellant’s level of permanent impairment was consistent with a grade modifier of 4.9 He referenced Table 16-6 on page 516 and noted that appellant’s AAOS lower limb questionnaire score fell under a grade modifier of 1. Dr. Allen concluded that appellant had 51 percent permanent impairment of his left lower extremity.

    On July 11, 2019 OWCP requested that Dr. Katz, in his role as a DMA, review Dr. Allen’s

May 21, 2019 report and provide an opinion on the extent of appellant’s left lower extremity permanent impairment. In a July 15, 2019 report, Dr. Katz indicated that the ROM impairment rating method was not applicable because Table 16-2 did not refer to the ROM impairment rating method as an alternative to the DBI rating method for appellant’s impairing condition. Therefore, he concluded that Dr. Allen’s impairment rating of 51 percent for the left lower extremity was not valid. Dr. Katz then provided a rating under the DBI method, which was similar to the rating he provided in his November 15, 2018 report. He concluded that appellant had 13 percent permanent impairment of the left lower extremity. Dr. Katz found that the date of MMI was the date of Dr. Einbund’s examination, i.e., October 25, 2018.

   By decision dated July 22, 2019, OWCP denied modification of its November 15, 2018

decision. It determined that Dr. Allen’s May 21, 2019 report lacked probative value regarding the permanent impairment of appellant’s left lower extremity.

                                      LEGAL PRECEDENT

   The schedule award provisions of FECA,10 and its implementing federal regulations,11 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

9
The Board notes that Table 16-17 only references net modifiers going up to the level of 3. See A.M.A., Guides
545, Table 16-17.
10
5 U.S.C. § 8107.
11
20 C.F.R. § 10.404.

                                                   7

the A.M.A., Guides as the uniform standard applicable to all claimants.12 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.13

    In determining impairment for the lower extremities under the sixth edition of the A.M.A.,

Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity to be rated. With respect to the ankle, the relevant portion of the leg for the present case, reference is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501.14 After the CDX is determined from the Foot and Ankle Regional Grid (including identification of a default grade value), the net adjustment formula is applied utilizing GMFH, GMPE, and GMCS. The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).15 Under Chapter 2.3, evaluators are directed to provide reasons for their impairment choices, including choices of diagnoses from regional grids and calculations of modifier scores.16

                                               ANALYSIS

   The Board finds that appellant has not met his burden of proof to establish greater than 13

percent permanent impairment of his left lower extremity, for which he previously received a schedule award.

    The Board finds that OWCP properly relied on the opinions of Dr. Einbund, an OWCP

referral physician, and Dr. Katz, a DMA, in determining that appellant had no greater than 13 percent permanent impairment of his left lower extremity.

    In an October 25, 2018 report, Dr. Einbund discussed appellant’s factual and medical

history with respect to his left ankle, including his 2006 nonwork injury with related surgery and his January 11, 2012 and April 29, 2013 work injuries with related surgery. He reported the findings of his October 25, 2018 physical examination. Dr. Einbund properly referred to the sixth edition of the A.M.A., Guides and utilized the DBI rating method to find that, under Table 16-2 on page 508, the CDX for appellant’s left ankle fusion in a neutral position resulted in a class 1 impairment with a default value of 10 percent.17 He assigned a GMFH of 2 based on appellant’s limping gait in the presence of objectively defined significant pathology. Dr. Einbund assigned a GMPE of 2 based on muscle atrophy at the left thigh measuring one centimeter and arthrodesis in position of function. He found that a GMCS was not applicable as the clinical studies were used to establish the diagnostic criteria and define the class. Dr. Einbund utilized the net adjustment formula, (GMFH - CDX) + (GMPE - CDX) = (2 - 1) + (2 - 1) = +2, which resulted in a grade E or

12
Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).
13
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 14
See A.M.A., Guides 501-08 (6th ed. 2009).
15
Id. at 515-22.
16
Id. at 23-28.
17
See id. at 508, Table 16-2.

                                                     8

13 percent permanent impairment of the left lower extremity.18 He further properly determined that the ROM impairment rating method was not applicable because Table 16-2 did not refer to the ROM impairment rating method as an alternative to the DBI rating method for appellant’s impairing condition. Dr. Einbund concluded that appellant had 13 percent permanent impairment of the left lower extremity.19

   In a November 15, 2018 report, Dr. Katz opined that Dr. Einbund’s determination that

appellant had 13 percent permanent impairment of the left lower extremity was supported by the medical evidence of record and was consistent with the methodology of the sixth edition of the A.M.A., Guides. He agreed with Dr. Einbund that the A.M.A., Guides did not allow use of the ROM impairment rating method for appellant’s impairing left ankle condition.20

    Appellant later submitted a May 21, 2019 impairment rating report from Dr. Allen, an

attending physician. Prior to conducting an impairment rating under the ROM impairment rating method, Dr. Allen indicated, “The [ROM method] was found to result in a greater amount of lower extremity impairment than the [DBI] method for “Ankle Ankylosis” (20 [percent lower extremity impairment]).” He then noted that, utilizing the ROM method under Table 16-22 on page 549 of the sixth edition of the A.M.A., Guides, appellant had 51 percent permanent impairment of his left lower extremity.

    However, the Board finds that Dr. Allen’s report lacks probative value because he did not

derive an impairment rating in accordance with the standards of the sixth edition of the A.M.A., Guides. Both Dr. Einbund and Dr. Katz properly noted that the ROM impairment rating method was not applicable because Table 16-2 did not refer to the ROM impairment rating method as an alternative to the DBI rating method for appellant’s impairing condition.21 Although Dr. Allen provided 20 percent impairment rating for left ankle ankylosis, he did not explain how this rating was derived in accordance with the standards of the sixth edition of the A.M.A., Guides. He did not make reference to specific portions of the A.M.A., Guides or otherwise explain how his rating was calculated. The Board has held that an opinion on permanent impairment lacks probative value if it is not derived in accordance with the standards adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses.22

   For these reasons, appellant has not met his burden of proof to establish greater than 13

percent permanent impairment of his left lower extremity, for which he previously received a schedule award.

18
See supra note 16.
19
Dr. Einbund determined that appellant’s date of MMI was October 25, 2018, the date of his examination.
20
Dr. Katz found that appellant’s date of MMI was October 25, 2018, the date of Dr. Einbund’s examination.
21
See A.M.A., Guides 501-08, Table 16-2.
22
See N.A., Docket No. 19-0248 (issued May 17, 2019).

                                                      9

Appellant may request a schedule award or increased schedule award at any time based on evidence of a new exposure or medical evidence showing progression of an employment-related condition resulting in permanent impairment or increased impairment.

                                    CONCLUSION

   The Board finds that appellant has not met his burden of proof to establish greater than 13

percent permanent impairment of his left lower extremity, for which he previously received a schedule award.

                                        ORDER

 IT IS HEREBY ORDERED THAT the July 22, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 31, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10