United States Department of Labor 

Employees’ Compensation Appeals Board 

___________________________________________

K.B., Appellant 

and 

DEPARTMENT OF JUSTICE, ALCOHOL 

TOBACCO, FIREARMS & EXPLOSIVES, 

Washington, DC, Employer 

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Docket No. 15-0928 

Issued: August 17, 2015 

Appearances: Case submitted on the record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 23, 2015 appellant filed a timely appeal from a November 21, 2014 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of appellant’s claim for a schedule award. 

ISSUE 

The issue is whether appellant met his burden of proof to establish a schedule award. 

FACTUAL HISTORY 

On July 9, 2013 appellant, then a 30-year-old firearms enforcement officer, injured his 

left hand when a weapon inadvertently fired without the trigger being pulled. Appellant noted a 

hand laceration with an injury to the bone and tendon. He stopped work on July 9, 2013. OWCP 

 1

 5 U.S.C. § 8101 et seq. 
2

accepted the claim for open fracture of the proximal phalanx or phalanges of the left thumb, open 

wound of the finger with tendon involvement, left index finger, open fracture base of thumb, 

(first) metacarpal, left. Appellant received compensation benefits. 

In a July 9, 2013 emergency room report, Dr. James Higgins, Board-certified in plastic 

surgery and hand surgery, stated that a pistol fired about three inches from appellant’s hand. He 

noted lacerations of the left thumb and index finger. The thumb had injury at the proximal 

phalanx both radial and ulnarly on the dorsal aspects with bleeding controlled. The index finger 

had a dorsal laceration over the metacarpophalangeal (MP) joint with the extensor tendon 

exposed and appearing injured. Imaging of the left hand showed a comminuted fracture of the 

left thumb, proximal phalanx, with minimal to no displacement. Dr. Higgins diagnosed left 

thumb proximal phalanx open fracture, index finger extensor tendon injury at the metacarpal 

level. He administered anesthesia to the hand and irrigated the wounds, noting evidence of 

injury to the extensor mechanism and about a 50 percent laceration to the extensor digitorum 

communis. The extensor was repaired and the wound was closed using sutures. The hand was 

then placed in a protective thumb splint and MP joint extension splint. 

On October 1, 2013 appellant filed a claim for a schedule award. 

By letter dated June 10, 2014, OWCP requested that appellant obtain an opinion from his 

treating physician regarding whether he reached maximum medical improvement and whether 

his accepted condition caused permanent impairment pursuant to the American Medical 

Association, Guides to the Evaluation of Permanent Impairment, (hereinafter, A.M.A., Guides) 

(6th ed. 2009). 

Appellant provided several reports from Dr. Keith A. Segalman, a Board-certified 

orthopedic surgeon. The reports included a July 26, 2013 report in which Dr. Segalman noted 

that appellant was seen for left hand complaints. Dr. Segalman advised that appellant sustained a 

gunshot wound to his left hand on July 9, 2013. He explained that appellant was seen at the 

emergency room and had an extensor repair of the index finger and irrigation of a fracture of the 

left thumb. Dr. Segalman examined appellant and advised that he recommended a closed 

pinning versus an open reduction and internal fixation, as an outpatient in the near future. He 

also explained that the procedure needed to be performed “quickly to avoid a malunited 

fracture.” In an August 7, 2013 report, Dr. Segalman explained that they were going to allow the 

fracture to heal before considering an osteotomy. He indicated that appellant was scheduled for 

follow up in approximately four weeks and then he would begin a course of therapy. In an 

August 30, 2013 report, Dr. Segalman opined that appellant had residual contracture related to 

the malunion, but his function was greatly improved. He recommended a return to light duty and 

continued therapy. Dr. Segalman explained that, if appellant was still having difficulty in four 

weeks, they would consider an osteotomy, otherwise he would likely be at maximum medical 

improvement. In a September 27, 2013 report, he noted that appellant was status post gunshot 

wound to his left hand with malunion of his thumb. Dr. Segalman explained that appellant’s 

function was greatly improved and appeared to be continuing to improve. He indicated that 

appellant was doing well with therapy, but they “could not guarantee that the patient would 

improve his motion and he may lose his motion. We may not necessarily make him better with 

the surgery at this point.” Dr. Segalman recommended that appellant continue to live with his 
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current state and continue to work on exercises at home. He advised that appellant could return 

to full work status. 

On November 21, 2014 OWCP denied appellant’s claim for a schedule award. It found 

that the medical evidence of record did not support a permanent impairment to a scheduled 

member or function of the body. 

LEGAL PRECEDENT 

The schedule award provision of FECA,2 and its implementing federal regulations,3 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.4 For decisions issued 

after May 1, 2009, the second printing of the sixth edition will be used.5 

ANALYSIS 

The evidence of record is insufficient to establish that appellant is entitled to a schedule 

award in accordance with the sixth edition of the A.M.A., Guides. 

OWCP accepted appellant’s claim for open fracture of the proximal phalanx or phalanges 

of the left thumb, open wound of the finger with tendon involvement, left index finger, open 

fracture base of thumb, (first) metacarpal, left. Appellant claimed a schedule award on 

October 1, 2013. The record contains reports dating from July 26 to September 27, 2013 from 

appellant’s treating physician, Dr. Segalman. However, Dr. Segalman did not provide any 

opinion in which he indicated that appellant had a permanent impairment pursuant to the 

A.M.A., Guides. On June 10, 2014 OWCP advised appellant of the type of evidence needed to 

establish his schedule award claim, but such evidence was not submitted. As appellant did not 

submit any medical evidence to support that he had ratable impairment of his hand or arm under 

the A.M.A., Guides, he has not established entitlement to a schedule award. 

Following issuance of OWCP’s November 21, 2014 decision, appellant offered 

additional evidence. However, the Board may not consider such evidence for the first time on 

appeal as its review is limited to the evidence that was before OWCP at the time of its decision.6

 

On appeal, appellant also asserted that OWCP did not properly develop his claim and that this 

resulted in a worsening of his condition. The Board notes that it only has jurisdiction over the 

 2

 5 U.S.C. § 8107. 

3

 20 C.F.R. § 10.404. 

4 Id. at § 10.404(a). 

5

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

6 See 20 C.F.R. § 501.2(c). 
4

November 21, 2014 decision in which OWCP found that appellant had not established 

entitlement to a schedule award.7

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 not met his burden of proof to establish that he was 

entitled to a schedule award. 

ORDER 

IT IS HEREBY ORDERED THAT the November 21, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 17, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

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 The Board only has jurisdiction over adverse final decisions of OWCP. See 20 C.F.R. §§ 501.2(c) and 501.3(a).