United States Department of Labor

Employees’ Compensation Appeals Board

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J.P., claiming as representative of the estate of 

G.R., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Chula Vista, CA, Employer

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Docket No. 17-1275

Issued: January 10, 2018

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 15, 20171appellant filed a timely appeal from a November 15, 2016 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 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)(f). One hundred and eighty days from November 15, 2016, the date of OWCP’s last decision was 

Sunday May 14, 2017. As the 180th day fell on Sunday, appellant had until the next business day, Monday May 15, 

2017 to file a timely appeal. Since using May 22, 2017, the date the appeal was received by the Clerk of the 

Appellate Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. 

The date of the U.S. Postal Service postmark is May 15, 2017, rendering the appeal timely filed. See 20 C.F.R. 

§ 501.3(f)(1)(2).

2 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has established that the employee is entitled to a schedule 

award in addition to the 12 percent permanent impairment of the right upper extremity and 18

percent permanent impairment of the right lower extremity, for which he previously received 

schedule awards. 

FACTUAL HISTORY

On August 21, 2014 the employee, then a 49-year-old border patrol agent, filed a 

traumatic injury claim (Form CA-1) alleging that on August 20, 2014 he felt extreme pain and a 

“pop” in his right knee and right shoulder when he stepped into a gopher hole, hyperextended his 

right knee, and fell down onto his right shoulder in the performance of duty. He stopped work 

and was released to limited duty on August 21, 2014.

OWCP accepted the employee’s claim for right shoulder rotator cuff tear and right knee 

medial meniscus tear.

On November 12, 2014 the employee underwent authorized right knee surgery. He 

stopped work and received wage-loss compensation for the period November 12 to 26, 2014. On 

January 21, 2015 the employee underwent authorized right shoulder surgery and stopped work 

again. OWCP paid disability compensation for the period January 21 to March 5, 2015.

On May 22, 2015 the employee filed a claim for a schedule award (Form CA-7).

The employee submitted an April 30, 2015 report by Dr. Michael R. Lenihan, a Boardcertified orthopedic surgeon. He reviewed the employee’s history and described the August 20, 

2014 employment incident. Dr. Lenihan related that the employee currently complained of dull 

aching pain in his shoulder with some feelings of mild weakness and no significant ongoing 

symptoms with regard to the knee. Upon physical examination of the employee’s right shoulder, 

he reported minimal residual tenderness over the acromioclavicular (AC) joint and mild 

tenderness over the lateral acromial edge. Motor strength was 5/5. Dr. Lenihan indicated that 

examination of the employee’s right knee showed no significant medial or lateral joint line 

tenderness, no significant anterior, posterior, varus, or valgus laxity, and no effusion. Motor and 

sensory examination did not reveal any focal deficits. Dr. Lenihan diagnosed right knee status 

post partial medial meniscectomy and right shoulder status post glenoid labral debridement and 

debridement of the long tendon of the biceps and resection of the distal clavicle. He noted that 

appellant had a QuickDASH score of 25.

Dr. Lenihan reported that the employee’s condition should be considered permanent and 

stationary. He indicated that according to the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3 Knee Regional Grid on 

page 509, the employee had two percent permanent impairment of the right lower extremity as 

he had undergone a partial meniscectomy of his right knee. Dr. Lenihan reported no significant 

upward or downward modifying factors. Regarding the employee’s right shoulder injury, he 

 

3 A.M.A., Guides (6th ed. 2009).
3

referenced the Shoulder Regional Grid on page 403, and determined that the employee had 10

percent permanent impairment of the right upper extremity for post-distal clavicle resection. 

Dr. Lenihan indicated that the employee had grade 1 modifier for functional history and physical 

examination due to mild palpatory findings. He related grade 4 modifier for clinical studies due 

to labral lesion and biceps tendon pathology, which increased the employee’s impairment rating 

to 12 percent of the right upper extremity.

In a July 12, 2015 report, Dr. Ellen Pichey, Board-certified in preventive and 

occupational and family medicine and an OWCP medical adviser, noted that the employee’s

claim was accepted for right shoulder rotator cuff tear and right knee medial meniscus tear, with 

right knee partial medial meniscectomy and right shoulder arthroscopic rotator cuff repair. She

referenced Table 15-5, page 403, and noted that the employee had 12 percent permanent 

impairment of the right upper extremity. Regarding the employee’s right knee injury, Dr. Pichey 

indicated that according to Table 16-3, page 509, he had two percent permanent impairment of 

the right lower extremity. She related that due to the employee’s previous schedule awards, he 

was only entitled to an additional six percent permanent impairment of the right upper extremity. 

Dr. Pichey noted a date of maximum medical improvement (MMI) of April 30, 2015, the date of 

the evaluation.

The employee passed away on August 22, 2015.

By letter dated April 11, 2016, OWCP noted that Dr. Pichey’s July 12, 2015 report

needed clarification. It referred the employee’s schedule award claim, along with a statement of 

accepted facts (SOAF) and a copy of the medical record, to another OWCP medical adviser to 

determine whether the employee sustained additional permanent impairment of his right upper 

extremity due to his accepted right shoulder injury.

4

The SOAF indicated that under OWCP File No. xxxxxx504, OWCP had accepted the 

employee’s claim for a right thumb fracture as a result of a March 7, 1992 employment injury 

and paid a schedule award of 6 percent permanent impairment of the right upper extremity in 

March 1994. Under OWCP File No. xxxxxx957, OWCP had accepted the employee’s claim for 

right knee medial meniscus tear, right knee sprain, and right lower leg contusion and paid a 

schedule award of 10 percent permanent impairment of the right lower extremity in May 2008. 

Under OWCP File No. xxxxxx160, OWCP had accepted the employee’s claim for right ankle 

sprain, left shoulder sprain, and right ankle fracture and paid a schedule award of eight percent 

permanent impairment of the right lower extremity in August 2010.5

In a May 16, 2016 report, Dr. Arnold T. Berman, a Board-certified orthopedic surgeon 

and OWCP medical adviser, indicated that he reviewed the employee’s medical records and the 

SOAF. He accurately described the August 20, 2014 employment injury and noted the 

employee’s previous schedule awards. Dr. Berman indicated that he reviewed Dr. Lenihan’s 

 

4 The record indicates that Dr. Pichey no longer worked for OWCP, so appellant’s claim was referred to another 

DMA.

5 Under OWCP File No. xxxxxx723, OWCP accepted appellant’s claim for left ankle sprain and left knee tear of 

medial meniscus and paid a total schedule award of nine percent permanent impairment of the left lower extremity. 
4

April 30, 2015 impairment rating report and agreed with his impairment rating. Utilizing the 

sixth edition of the A.M.A., Guides, Table 16-3, page 509, Knee Regional Grid: Lower 

Extremity Impairments, Dr. Berman assigned class 1, 2 percent permanent impairment, for 

partial medial meniscus tear of the right knee. He related that according to Table 16-6, Table 16-

7, and Table 16-8, the employee had a grade modifier of 1 for functional history, physical 

examination, and clinical studies, respectively. Dr. Berman calculated that the employee had 

zero net adjustment, resulting in two percent permanent impairment of the right lower extremity. 

Regarding the employee’s right shoulder injury, he referenced Table 15-5, page 403, Shoulder 

Regional Grid: Upper Extremity Impairments, and assigned class 1, grade C, default value of 10

percent. He related that according to Table 15-7, page 506, the employee had grade modifier 

of 1 for functional history due to mild problem. Dr. Berman indicated that according to 

Table 15-8, page 508, the employee had grade modifier of 1 for physical examination and 

according to Table 15-9, page 410, the employee had grade modifier of 3 for clinical studies due 

to his torn labrum and biceps tendinopathy. After applying the net adjustment formula,

Dr. Berman calculated an adjustment of 2, which resulted in 12 percent permanent impairment of 

the right upper extremity. He noted that the employee had reached MMI on April 30, 2015, the 

date of Dr. Lenihan’s report. Dr. Berman concluded that the employee had no increase over his 

previous schedule awards.

By decision dated June 15, 2016, OWCP denied the employee’s schedule award claim, 

finding that the medical evidence of record did not warrant an increase in the previous schedule 

awards. It noted that the employee was previously paid schedule awards for 18 percent 

permanent impairment of the right lower extremity under OWCP File Nos. xxxxxx957 and 

OWCP File No. xxxxx160 and 6 percent permanent impairment of the right upper extremity 

under OWCP File No. xxxxxx504. OWCP found that the medical evidence of record was 

insufficient to establish that he was entitled to an additional schedule award as a result of the 

August 20, 2014 employment injury.

On August 9, 2016 appellant, the employee’s widow, requested reconsideration of the 

June 15, 2016 OWCP decision. In an August 1, 2016 statement, she indicated that she was 

enclosing Dr. Lenihan’s medical report, which showed that appellant had not been paid twice for 

the same injury. Appellant related that according to the report, the employee sustained a left 

shoulder injury in January 1994. She asserted that he had not received a schedule award for his 

right shoulder, but only for his left shoulder.

Appellant resubmitted Dr. Lenihan’s April 30, 2015 report.

By decision dated November 3, 2016, OWCP vacated the June 15, 2016 schedule award 

decision. It found that the employee had 2 percent permanent impairment of the right lower 

extremity and 12 percent permanent impairment of the right upper extremity according to the 

May 16, 2016 report of Dr. Berman, OWCP’s medical adviser. OWCP further determined that 

because the employee had received an award of six percent permanent impairment of the right 

upper extremity due to his accepted right thumb injury, he was entitled to an additional schedule 

award of six percent permanent impairment of the right upper extremity due to his August 20, 

2014 right shoulder injury. 
5

On November 15, 2016 OWCP granted a schedule award for an additional six percent 

permanent impairment of the right upper extremity, based on Dr. Berman’s report. The award 

ran from April 30 to September 8, 2015.

LEGAL PRECEDENT 

A claimant seeking compensation under FECA has the burden of proof to establish the 

essential elements of his or her claim.6 With respect to a schedule award, it is the claimant’s 

burden of proof to establish a permanent impairment of the scheduled member as a result of his 

or her employment injury.7 A claimant may seek an increased schedule award if the evidence 

establishes an increased impairment causally related to an employment injury.8 The medical 

evidence must include a detailed description of the permanent impairment.9

The schedule award provision of FECA10 and its implementing regulations 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. FECA, however, does not 

specify the manner in which the percentage of loss of a member shall be determined. The 

method used in making such determination is a matter which rests in the sound discretion of 

OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a 

single set of tables so that there may be uniform standards applicable to all claimants. The 

A.M.A., Guides has been adopted by OWCP as a standard for evaluation of schedule losses and 

the Board has concurred in such adoption.11 For schedule awards after May 1, 2009, the 

impairment is evaluated under the sixth edition of the A.M.A., Guides, published in 2009.12

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).13 In addressing impairment for the upper extremities, the sixth edition of the 

A.M.A., Guides requires identifying the impairment class for the diagnosed condition, which is 

then adjusted by grade modifiers based on functional history, physical examination, and clinical 

 

6

John W. Montoya, 54 ECAB 306 (2003).

7 Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

8 See Rose V. Ford, 55 ECAB 449 (2004).

9 See Vanessa Young, 55 ECAB 575 (2004).

10 5 U.S.C. § 8107.

11 20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

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

Chapter 2.806.6.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, 

Chapter 3.700.2 and Exhibit 1 (January 2010).

13 A.M.A., Guides 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A 

Contemporary Model of Disablement (6th ed. 2009).
6

studies.14 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).15 

Evaluators are directed to provide reasons for their impairment rating choices, including the 

choices of diagnosis from regional grids and calculations of modifier scores.16

ANALYSIS

OWCP accepted that the employee sustained a right shoulder and right knee injury as a 

result of an August 20, 2014 employment incident. The employee also had previously accepted 

conditions of right thumb fracture for which he had received a schedule award of 6 percent right 

upper extremity impairment and right knee meniscus tear, right knee sprain, right leg contusion, 

and right ankle fracture, for which he had received a schedule award of 18 percent right lower 

extremity impairment. On May 22, 2015 the employee filed a claim for a schedule award. 

OWCP determined that the employee had 2 percent permanent impairment of the right lower 

extremity and 12 percent permanent impairment of the right upper extremity as a result of his 

August 20, 2014 employment injury. 

The Board finds that the evidence of record establishes that the employee had 12 percent 

permanent impairment of the right upper extremity and 2 percent permanent impairment of the 

right lower extremity causally related to the accepted August 20, 2014 employment injury. 

In support of his schedule award claim, the employee submitted an April 30, 2015 report 

by Dr. Lenihan. He provided physical examination findings and noted diagnoses of right 

shoulder rotator cuff tear and right knee meniscus tear. Referring to Table 16-3, page 509,

Dr. Lenihan determined that the employee had 2 percent permanent impairment of the right 

lower extremity due to his right knee injury. He also utilized Table 15-5, page 403, and 

calculated that the employee had 12 percent permanent impairment of the right upper extremity 

due to his right shoulder injury. The Board finds, therefore, that Dr. Lenihan’s report does not 

support a finding that the employee has more than 2 percent permanent impairment of the right 

lower extremity and 12 percent permanent impairment of the right upper extremity due to his 

August 20, 2014 employment injury.

In accordance with its procedures, OWCP properly referred the evidence of record to its 

medical adviser, Dr. Berman, who in a May 16, 2016 report, reviewed the employee’s medical 

record, including Dr. Lenihan’s April 30, 2015 report and agreed with his findings. Utilizing the 

A.M.A., Guides, he calculated that the employee had 2 percent permanent impairment of the 

right lower extremity and 12 percent permanent impairment of the right upper extremity as a 

result of the employee’s August 20, 2014 employment injury. Based on Dr. Berman’s May 16, 

2016 report, OWCP granted a schedule award for additional 6 percent permanent impairment of 

the right upper extremity. It determined that because the employee had received an award of 6 

percent permanent impairment of the right upper extremity and 18 percent permanent 

 

14 A.M.A., Guides 385-419; see M.P., Docket No. 13-2087 (issued April 8, 2014).

15 Id. at 411.

16 See R.V., Docket No. 10-1827 (issued April 1, 2011).
7

impairment of the right lower extremity under previous claims, he was not entitled to an 

additional schedule award.

The Board has carefully reviewed the opinion of Dr. Berman and finds that his May 16, 

2016 report was sufficiently well rationalized to establish that the employee had 2 percent 

permanent impairment of the right lower extremity and 12 percent permanent impairment of the 

right upper extremity as a result of his August 20, 2014 employment injury. Dr. Berman’s 

opinion was based on a proper factual and medical history, which he reviewed, and on the proper 

tables and procedures in the A.M.A., Guides. He properly referenced Table 16-3, Knee Regional 

Grid, page 509, based on the accepted condition of right knee meniscus tear and determined that 

the employee had a default rating of two for partial medial meniscus tear. Dr. Berman assigned 

grade modifiers of 1 for functional history, physical examination, and clinical studies. He 

applied the net adjustment formula for a net adjustment of zero, which resulted in two percent 

permanent impairment of the right lower extremity. Dr. Berman also utilized Table 15-5, 

Shoulder Regional Grid, page 403, based on the accepted condition of right shoulder rotator cuff 

tear and determined that the employee had a default rating of 10. He assigned grade modifiers of 

1 for functional history and physical examination findings and 3 for clinical studies. After 

applying the net adjustment formula, Dr. Berman calculated an adjustment of 2, which resulted 

in 12 percent permanent impairment of the right upper extremity.

The Board finds that OWCP properly relied on the report of Dr. Berman to find that the 

employee did not have more than 2 percent permanent impairment of the right lower extremity 

and 12 percent permanent impairment of the right upper extremity causally related to the 

August 20, 2014 employment injury. Dr. Berman based his report on the medical evidence in 

the record, was based on an accurate application of the A.M.A., Guides, and provided medical 

rationale for his impairment rating. The Board finds that appellant has not established more than 

2 percent permanent impairment of the employee’s right lower extremity and 12 percent 

permanent impairment of the right upper extremity due to the employee’s August 20, 2014 

employment injury.

On appeal, appellant alleges that she is entitled to the entire 12 percent permanent 

impairment for the employee’s right shoulder injury. The Board finds that the previous schedule 

award for permanent impairment of the employee’s right upper extremity was granted for his 

accepted right thumb condition under a previous claim, not his current accepted right shoulder 

condition. OWCP regulations provide that an employee’s schedule award benefits will be 

reduced by compensation paid under the schedule award for an earlier injury if the impairment is 

of the same body part or function or different parts of the same part or function; and 

compensation payable for the later impairment in whole or in part would duplicate the earlier 

payment.17 As OWCP’s district medical adviser found that the employee was entitled to a 

schedule award of 12 percent permanent impairment of the right upper extremity due to his 

accepted right shoulder injury, the Board finds that the previous award for permanent impairment 

of the employee’s right thumb injury would not duplicate the right shoulder award.18 Therefore, 

the Board finds that appellant is entitled to an additional schedule award for six percent 

 

17 See 20 C.F.R. § 10.404(d)(1)(2).

18 See M.P., Docket No. 17-0150 (issued June 21, 2017).
8

permanent impairment of the right upper extremity, for a total of 12 percent permanent 

impairment, due to the employee’s accepted right shoulder injury.

CONCLUSION

The Board finds that the evidence of record establishes that the employee has 12 percent 

permanent impairment of the right upper extremity and 2 percent permanent impairment of the 

right lower extremity due to the employee’s August 20, 2014 employment injury. 

ORDER

IT IS HEREBY ORDERED THAT the November 15, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and remanded in part for payment of an 

additional schedule award. 

Issued: January 10, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board