United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.T., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL AIR MARSHAL SERVICE, 

CHICAGO FIELD OFFICE, Chicago, IL, 

Employer 

__________________________________________ 

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Docket No. 17-0686 

Issued: August 1, 2017 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On February 6, 2017 appellant, through counsel, filed a timely appeal from November 2, 

2016 and January 30, 2017 merit decisions 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. 
2

ISSUE 

The issue is whether appellant met his burden of proof to establish greater than the six 

percent impairment of the left eye, for which he previously received a schedule award. 

On appeal counsel asserts that, based on the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (2009) (hereinafter A.M.A., 

Guides),3 appellant is also entitled to six percent visual impairment of the right eye because the 

appropriate rating is for the visual system as a whole. 

FACTUAL HISTORY 

On March 31, 2004 appellant, then a 32-year-old civil aviation security specialist (air 

marshal) injured his left eye during a training exercise. OWCP accepted left eye central serous 

retinopathy. A treating Board-certified ophthalmologist, Dr. Stephen R. Kaufman, advised on 

August 27, 2004 that appellant’s examination was stable and his visual acuity had improved. On 

October 8, 2004 Dr. Philip J. Schaville, an optometrist, advised that appellant’s visual acuity had 

improved to 20/20 in the left eye. He recommended annual observation. 

On November 17, 2015 appellant, through counsel, filed a schedule award claim (Form 

CA-7). 

In a November 12, 2015 report, Dr. Neil Allen, Board-certified in internal medicine and 

neurology, noted examining appellant on October 30, 2015. He described the history of injury, 

appellant’s subsequent eye treatment, and noted current symptoms of reduced vision in the left 

eye. Dr. Allen indicated that appellant denied using prescription or corrective devices including 

glasses or contact lenses. Bilateral ophthalmic examination demonstrated no flame hemorrhages 

or arteriovenous nicking. The macula and optic discs were within normal limits. Examination 

with the traditional Snellen chart viewed at 20 feet demonstrated right eye 20/13, left eye 20/80, 

and both eyes together 20/10. Dr. Allen noted that the findings yielded visual acuity scores 

(VAS) of 110, 70, and 110 respectively, found in Table 12-2, Impairment of Visual Acuity, of 

the sixth edition of the A.M.A., Guides. Dr. Allen then applied the formula found in Table 12-3 

of the A.M.A., Guides used to calculate acuity-related impairment.4

 He found that the sum of 

appellant’s visual acuity scores (110 + 70 + 110 x 3 or 330) was 470. Dr. Allen then divided this 

by 5 to yield a functional acuity score (FAS) of 94. In accordance with Table 12-3, he subtracted 

appellant’s FAS of 94 from 100 and concluded that appellant had a whole person permanent 

impairment of six percent. 

On May 23, 2016 Dr. Kevin Yuhan, a Board-certified ophthalmologist and OWCP 

medical adviser, noted his review of a statement of accepted facts and the medical record. He 

indicated that there was no medical evidence between 2004 and 2015 when appellant reported a 

change in his visual condition. Dr. Yuhan advised that, since the first documentation of severe 

 3

 A.M.A., Guides (6th ed. 2009). 

4

 The formula indicates that VAS of the right eye, VAS of the left eye, and binocular VAS times 3 are added, 

with the sum and divided by 5 to yield a functional visual acuity score. Id. at 289. 
3

visual acuity impairment in the left eye was on November 12, 2015, that was the date maximum 

medical improvement occurred. Regarding appellant’s impairment, he noted Dr. Allen’s acuity 

examination findings for both eyes. Dr. Yuhan agreed with Dr. Allen’s conclusion that appellant 

had a functional visual acuity score of 94 and that appellant had six percent permanent 

impairment. He found that maximum medical improvement was reached on November 12, 

2015, the date of Dr. Allen’s report. 

On July 28, 2016 appellant was granted a schedule award for six percent permanent loss 

of use of the visual acuity of his left eye, for 9.6 weeks of compensation, to run from 

November 12, 2015 to January 18, 2016. 

Appellant, through counsel, requested reconsideration on November 7, 2016. He asserted 

that, based on the A.M.A., Guides, appellant was entitled to a rating for both eyes. 

In a December 1, 2016 report, Dr. Yuhan repeated his impairment calculation. He further 

advised that, following review of counsel’s November 7, 2016 correspondence, although 

appellant’s only problem was with his left eye and the right eye was within normal limits, the six 

percent impairment was for the entire visual system as computed using the rating system found 

in the A.M.A., Guides. Dr. Yuhan noted that the system in the A.M.A., Guides required him to 

incorporate visual findings for both eyes in reaching his conclusion that appellant had six percent 

visual impairment. He concluded that since the impairment rating was computed using 

measurements for both eyes and visual fields in the overall calculation, there was no separate 

impairment for the right eye because the six percent impairment awarded was for the entire 

visual system involving both eyes. 

In a merit decision dated January 30, 2017, OWCP denied modification of its prior 

decision. It found that, based on the opinion of its medical adviser, Dr. Yuhan, appellant was not 

entitled to additional impairment of his eyes. 

LEGAL PRECEDENT 

It is the claimant’s burden of proof to establish that he or she sustained a permanent 

impairment of a scheduled member or function as a result of any employment injury.5

 

The schedule award provision of FECA6

 and its implementing federal regulations,7 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.8 For decisions issued 

 5 See Tammy L. Meehan, 53 ECAB 229 (2001). 

6

 5 U.S.C. § 8107. 

7

 20 C.F.R. § 10.404. 

8 Id. at § 10.404(a). 
4

after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.9

 

Chapter 12 of the sixth edition is to be utilized in assessing visual impairment. 

For 100 percent loss of an eye, as with blindness, FECA provides a maximum 160 weeks 

of compensation.10 A loss of 80 percent or more of the vision of an eye is the same as for loss of 

the eye.11 Partial losses are compensated proportionately.12 Although the A.M.A., Guides

provides that impairment ratings should be based on the best-corrected visual acuity,13 FECA 

mandates that the degree of loss of vision must be determined without regard to correction.14 

Neither FECA nor OWCP regulations provide for the payment of a schedule award for a whole 

person. A claimant is not entitled to such an award.15 

OWCP procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to OWCP’s medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser 

providing rationale for the percentage of impairment specified.16 

ANALYSIS 

The Board finds this case is not in posture for decision. On November 2, 2016 OWCP 

granted appellant a schedule award for six percent permanent impairment of the left eye, based 

on the calculations provided by Dr. Allen, an attending neurologist, as reviewed by its medical 

adviser, Dr. Yuhan, an ophthalmologist. The physicians agreed that appellant had six percent 

visual impairment. However, the Board finds that Dr. Allen’s report, which was relied upon by 

Dr. Yuhan, contains a computation error. 

Dr. Allen noted that appellant denied using corrective glasses or contact lenses. He 

applied Snellen chart findings of appellant’s vision in each eye and his binocular function to 

Table 12-2, Impairment of Visual Acuity.17 Dr. Allen properly found that, based on appellant’s 

Snellen chart findings, he had a VAS of 110 in the right eye, 70 in the left eye, and 110 in both 

eyes. He then calculated appellant’s acuity-related impairment using the formula found in Table 

 9

 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013). 

10 Supra note 6 at § 8107(c)(5). 

11 Id. at § 8107(c)(14). 

12 Id. at § 8107(c)(19). 

13 Supra note 3 at Chapter 12.2b, page 286. 

14 Supra note 12. 

15 S.K., Docket No. 08-848 (issued January 26, 2009). 

16 See supra note 9 at Chapter 2.808.6(f) (February 2013). 

17 Supra note 3 at 288. 
5

12-3,18 using appellant’s VAS findings. The formula indicates that the VAS of 110 in the right 

eye is to be added to the VAS of 70 in the left eye which is added to the VAS in both eyes of 110 

times three (or 330). Dr. Allen found a total VAS score of 470, which as provided in Table 12-3, 

he then divided by 5 to find a FAS of 94. However, adding 110 plus 70 plus 330 yields 510 not 

470. 510 divided by 5 yields a FAS score of 102. Table 12-3 then indicates that the VAS score 

is deducted from 100 to determine the degree of impairment. Dr. Allen deducted appellant’s 

FAS of 94 from 100 to find six percent impairment. However, deducting 102 from 100 yields 0 

impairment. Dr. Yuhan merely adopted Dr. Allen’s finding without further explanation. As 

there is a computation error, the case must be remanded to OWCP for further development. 

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden of proof to establish entitlement to compensation, 

OWCP shares responsibility in the development of the evidence to see that justice is done.19 

Once it undertakes development of the record, it must do a complete job in procuring medical 

evidence that will resolve the relevant issues in the case.20 Herein, appellant submitted medical 

evidence from Dr. Allen in support of his schedule award claim. OWCP began to develop the 

evidence by seeking an opinion from Dr. Yuhan, its medical adviser. As noted, the schedule 

award granted in this case was based on an incorrect calculation. 

On remand, OWCP should further develop the medical evidence of record by requesting 

its medical adviser to provide a reasoned opinion regarding appellant’s left eye impairment, 

explaining the basis of impairment under the sixth edition of the A.M.A., Guides. If its medical 

adviser is unable to render a reasoned opinion fully explaining the application of the A.M.A., 

Guides, OWCP shall refer appellant to an appropriate Board-certified specialist for a second 

opinion regarding the extent of appellant’s eye impairment. Following this and further 

development deemed necessary, OWCP shall issue an appropriate merit decision on appellant’s 

schedule award claim.21 

CONCLUSION 

The Board finds this case is not in posture for decision regarding appellant’s impairment 

for visual acuity loss. 

 18 Id. at 289. 

19 Phillip L. Barnes, 55 ECAB 426 (2004). 

20 L.P., Docket No. 12-168 (issued August 22, 2012). 

21 As to counsel’s assertion on appeal that appellant was entitled to an additional award for the right eye, there is 

nothing in the A.M.A., Guides to support his assertion. While the impairment calculation under Table 12-3 is for 

total visual acuity loss, the formula used to calculate impairment contains specific visual values for each eye in 

reaching the total impairment. Therefore, although a visual impairment could be for a single eye, as in appellant’s 

case, the visual impairment found under Table 12-3 is for total visual impairment, taking into consideration vision 

measurements found for each eye. 
6

ORDER 

IT IS HEREBY ORDERED THAT the January 30, 2017 and November 2, 2016 

decisions of the Office of Workers’ Compensation Programs are set aside, and the case is 

remanded to OWCP for proceedings consistent with this opinion of the Board. 

Issued: August 1, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board