United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.J., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

San Ysidro, CA, Employer 

__________________________________________ 

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Docket No. 14-1308 

Issued: October 7, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 20, 2014 appellant filed a timely appeal from the December 6, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP), which denied an 

additional 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 this case. 

ISSUE 

The issue is whether appellant has more than a 13 percent impairment of his left lower 

extremity, for which he received schedule awards. 

FACTUAL HISTORY 

On December 20, 2010 appellant, a 44-year-old border patrol agent, sustained a traumatic 

injury in the performance of duty while attempting to jump a fence in response to a sensor 

 1

 5 U.S.C. § 8101 et seq.
2

activation. OWCP accepted his claim for lumbar sprain and lumbosacral (joint) sprain. It later 

accepted displacement of lumbar intervertebral disc without myelopathy. 

OWCP issued a schedule award on September 24, 2012 for a four percent additional 

impairment of the left lower extremity. It indicated that appellant had already received a 

schedule award in 2003 for a nine percent impairment of the left lower extremity under another 

claim number,2 accepted for an accepted left knee sprain. With the additional four percent 

impairment due to mild sensory and motor deficits of the S1 spinal nerve root, appellant’s 

combined left lower extremity impairments totaled 13 percent. 

On January 7, 2013 an OWCP hearing representative affirmed appellant’s additional 

schedule award. 

Dr. Thomas W. Harris, the attending orthopedic surgeon, examined appellant on 

March 26, 2013 and found a 10 percent impairment of the left lower extremity due to the 

combination of L5 moderate sensory deficit (3 percent), S1 moderate sensory deficit (2 percent), 

and an L5 mild motor deficit involving the extensor hallux longus (5 percent). 

In a decision dated December 6, 2013, OWCP reviewed the merits of appellant’s case 

and denied modification of its prior decision. It reasoned that, while Dr. Harris found a 10 

percent impairment of the left lower extremity, appellant had already received schedule awards 

for a 13 percent impairment. Accordingly, the evidence failed to establish that appellant was 

entitled to greater impairment. 

Appellant argues on appeal that his initial schedule award was for his left knee, and now 

he has nerve damage, which is unrelated. 

LEGAL PRECEDENT 

The schedule award provision of FECA3 and the implementing regulations4 set forth the 

number of weeks of compensation payable for permanent impairment from loss, or loss of use, 

of scheduled members or functions of the body. FECA, however, does not specify the manner in 

which the percentage of loss shall be determined. The method used in making such a 

determination is a matter that rests within the sound discretion of OWCP.5

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. OWCP has adopted the American Medical Association, 

Guides to the Evaluation of Permanent Impairment as the appropriate standard for evaluating 

 2

 OWCP File No. xxxxxx564. 

3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404. 

5 Linda R. Sherman, 56 ECAB 127 (2004); Daniel C. Goings, 37 ECAB 781 (1986). 
3

schedule losses.6 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate 

schedule awards.7

ANALYSIS 

Appellant submitted an impairment evaluation performed by his orthopedic surgeon, 

Dr. Harris, who found a 10 percent impairment of the left lower extremity due to several spinal 

nerve root deficits. OWCP found the percentage alone to be insufficient to establish that 

appellant was entitled to an additional award because he had previously received schedule 

awards totaling 13 percent impairment. 

However, appellant received a schedule award under another claim for a nine percent 

impairment of his left lower extremity due to an accepted left knee strain. The record does not 

disclose how this impairment was calculated. When it was later determined that he had an 

additional four percent impairment due to mild sensory and motor deficits of the S1 spinal nerve 

root, OWCP combined the impairments due to left knee strain and spinal nerve root deficits to 

determine that appellant had a total left lower extremity impairment of 13 percent. 

Appellant submitted evidence of a greater impairment due to spinal nerve root deficits. If 

this 10 percent impairment were combined with his previously determined 9 percent impairment 

for left knee sprain, his total left lower extremity impairment would total 18 percent, according 

to the Combined Values Chart on page 604 of the A.M.A., Guides. 

OWCP did not refer this matter to its medical adviser for review. FECA procedures 

relating to the evaluation of schedule awards state that the file should be routed to OWCP’s 

medical adviser for an opinion concerning the nature and percent of impairment.8

As OWCP did not follow its procedures, the Board finds that this case is not in posture 

for decision. The Board will set aside OWCP’s December 6, 2013 decision denying an 

additional schedule award and will remand the case for further development of the medical 

evidence. OWCP shall route the file to its medical adviser for review of Dr. Harris’ most recent 

impairment evaluation and for an opinion on the nature and percentage of the entire impairment 

to the left lower extremity under the sixth edition of the A.M.A., Guides. Following such further 

development of the evidence as may become necessary, OWCP shall issue a de novo decision on 

appellant’s entitlement to an additional schedule award. 

CONCLUSION 

The Board finds that this case is not in posture for decision. Further development of the 

medical evidence is warranted. 

 6

 20 C.F.R. § 10.404; Ronald R. Kraynak, 53 ECAB 130 (2001). 

7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.6a (January 2010). 

8 Id. at Chapter 2.808.6.d. 
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ORDER 

IT IS HEREBY ORDERED THAT the December 6, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further action. 

Issued: October 7, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board