United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.T., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Iselin, NJ, Employer 

__________________________________________ 

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Docket No. 14-296 

Issued: May 5, 2014 

Appearances: Case Submitted on the Record

Robert D. Campbell, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On November 20, 2013 appellant, through counsel, filed a timely appeal from a May 24, 

2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act1

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

Board has jurisdiction over the merits of this case. 

ISSUE 

The issue is whether OWCP properly determined that appellant was not entitled to an 

additional schedule award for her right leg. 

FACTUAL HISTORY 

On April 18, 2009 appellant, then a 58-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she sustained an injury on August 11, 2009 when she fell in the 

 1

 5 U.S.C. § 8101 et seq. 
2

performance of duty while carrying a bin. OWCP accepted the claim for a right ankle sprain, left 

knee contusion and sprain. 

In a report dated September 22, 2010, Dr. Nicholas Diamond, an osteopath, provided a 

history and results on examination. He opined that, under the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment, appellant had an 18 

percent right leg permanent impairment. Dr. Diamond indicated that the impairment was based 

on a right knee meniscal injury, right knee patellofemoral arthritis and right ankle instability. He 

also opined that appellant had a 17 percent left leg impairment.2

By report dated June 9, 2011, an OWCP medical adviser concurred that the right leg 

permanent impairment was 18 percent based on the right knee and ankle. The record also 

contains a September 17, 2011 report from another OWCP medical adviser indicating that the 

right leg impairment was 18 percent. 

In a decision dated November 3, 2011, OWCP found appellant was not entitled to a 

schedule award for the right leg. According to it, she had received a schedule award for a 38 

percent right leg permanent impairment under another claim (OWCP File No. xxxxxx270). 

Appellant requested a hearing before an OWCP hearing representative, which was held 

on March 14, 2012. In a report dated November 2, 2011, Dr. Diamond again opined that 

appellant had an 18 percent right leg impairment. 

In a decision dated June 6, 2012, OWCP’s hearing representative stated that appellant 

had received schedule awards for 50 percent to the right leg under the other claim, which had 

been accepted for a bunion to the foot. The hearing representative indicated that the sixth edition 

of the A.M.A., Guides was now in use and found that further review by an OWCP medical 

adviser was warranted to determine if appellant was entitled to an additional award “for a 

combined rating.” 

In a report dated July 26, 2012, an OWCP medical adviser stated that there was no 

evidence that the right knee was ever directly injured. He found the impairment for right ankle 

instability was one percent. In a report dated November 28, 2012, an OWCP medical adviser 

stated that appellant had sustained an injury on June 21, 2000, accepted for bunion of the right 

foot and aggravation of bunionectomy. He reported that “apparently” appellant had received a 

schedule award for a 50 percent right leg impairment. The medical adviser opined that 

appellant’s current impairment based on the right knee and ankle was 18 percent. 

By decision dated January 17, 2013, OWCP found appellant was not entitled to an 

additional schedule award for the right leg. It noted that the November 28, 2012 report of 

OWCP’s medical adviser found that she had an 18 percent right leg impairment, but she had 

previously received schedule awards for 50 percent. 

Appellant requested a review of the written record. In a decision dated May 24, 2013, an 

OWCP hearing representative affirmed the January 17, 2013 decision. The hearing 

 2

 The decision on appeal discusses only the right leg; a permanent impairment to the left leg is not before the 

Board on this appeal. 
3

representative found that, while appellant currently had an 18 percent right leg impairment, she 

had previously received an award for 50 percent impairment and was not entitled to an additional 

award. 

LEGAL PRECEDENT 

Section 8107 of FECA provides that, if there is permanent disability involving the loss or 

loss of use of a member or function of the body, the claimant is entitled to a schedule award for 

the permanent impairment of the scheduled member or function.3 Neither FECA nor the 

regulations specify the manner in which the percentage of impairment for a schedule award shall 

be determined. For consistent results and to ensure equal justice for all claimants OWCP has 

adopted the American Medical Association, Guides to the Evaluation of Permanent Impairment

as the uniform standard applicable to all claimants.4 For schedule awards after May 1, 2009, the 

impairment is evaluated under the sixth edition.5 

It is well established under FECA regulations that benefits payable under section 8107(c) 

shall be reduced by the period of compensation paid or payable under the schedule for an earlier 

injury if: (1) compensation in both cases is for impairment of the same member or function or 

different parts of the same member or function; and (2) the latter impairment in whole or in part 

would duplicate the compensation payable for the preexisting impairment.6 The Board has held 

that OWCP must adequately explain how the latter impairment duplicated the compensation the 

claimant previously received under a separate file number.7

 

ANALYSIS 

In the present case, OWCP found that appellant was not entitled to a right leg schedule 

award resulting from her August 11, 2009 employment injury. It acknowledged that the medical 

evidence established an 18 percent right leg impairment based on the right knee and ankle. The 

stated reason for denying a schedule award was that appellant had previously received a schedule 

award for a 50 percent right leg impairment under a prior 2000 claim, which is not 

administratively associated with the current claim. Since the 18 percent current impairment is 

less than 50 percent, OWCP found appellant was not entitled to an additional schedule award. 

OWCP findings in this case are not in accord with the above legal precedent. To reduce 

current entitlement to a schedule award, the prior schedule award must not only be for the same 

member, but it must also duplicate the prior impairment. The information provided in the 

current file indicated that the prior award was for a right foot bunion, while the current 

 3

 5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule 

award is payable and the maximum number of weeks of compensation to be paid; additional members of the body 

are found at 20 C.F.R. § 10.404(b). 

4 A. George Lampo, 45 ECAB 441 (1994). 

5

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

6

 20 C.F.R. § 10.404(d). 

7 T.S., Docket No. 09-1308 (issued December 22, 2009). 
4

impairment was based on the right knee and ankle. OWCP did not cite to the appropriate legal 

precedent, did not properly develop the medical evidence on the issue or otherwise explain how 

the current impairment duplicated the prior impairment.8

The case will be remanded to OWCP for proper findings on the schedule award issue 

presented. To aid adjudication of the issue, OWCP should administratively combine the relevant 

case files with respect to a right leg permanent impairment.9

 After such further development as 

OWCP deems necessary, it should issue an appropriate decision. 

CONCLUSION 

The Board finds the case is not in posture for decision and is remanded to OWCP to 

properly adjudicate the schedule award issue presented. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated May 24, 2013 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: May 5, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8 See, e.g., R.H., Docket No. 11-1754 (issued April 24, 2010) (where an OWCP medical adviser found that a 

current carpal tunnel impairment did not duplicate a prior lateral epicondylitis impairment). 

9 See R.B., Docket No. 13-792 (issued July 25, 2013) (OWCP was directed to combine case files with respect to 

whether a prior schedule award duplicated a current impairment).