United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.L., Appellant

and

SOCIAL SECURITY ADMINISTRATION, 

Glendale, AZ, Employer

__________________________________________

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Docket No. 17-1854

Issued: March 20, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 August 31, 2017 appellant, through counsel, filed a timely appeal from an August 1, 

2017 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 the claim.

 

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 has established that she has more than seven percent 

permanent impairment of her right eye, for which she previously received a schedule award.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

as presented in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows.

OWCP accepted that on or before February 13, 2001 appellant, then a 39-year-old social 

insurance specialist claims representative, performed repetitive keypunching, typing, and writing, 

which caused bilateral carpal tunnel syndrome, bilateral lateral epicondylitis, bilateral median 

nerve neuritis, right wrist tenosynovitis, and a right shoulder condition.4 Appellant underwent a 

series of eight corticosteroid injections to treat accepted bilateral carpal tunnel syndrome.

Following multiple authorized upper extremity surgeries, appellant returned to full-time 

limited duty in July 2008 and to full duty on September 2008. She retired from federal 

employment effective November 30, 2010. Appellant was then employed in the private sector.

On March 27, 2013 Dr. Timothy Cavanaugh, an attending Board-certified 

ophthalmologist, performed phacoemulsification with posterior chamber intraocular lens 

implantation in the right eye on March 27, 2013, and in the left eye on April 10, 2013.

In a May 8, 2013 report, Dr. Cynthia Burlingame, an attending optometrist, opined that 

appellant’s posterior subpolar cataracts were likely due to steroid use related to the accepted upper 

extremity injuries. 

In an August 15, 2013 report, Dr. Burlingame opined that appellant’s right cataract was 

believed to have resulted from corticosteroid injections administered for the accepted bilateral 

carpal tunnel syndrome. She opined that appellant’s left cataract was due to normal aging.

On August 21, 2013 Dr. Cavanaugh performed an yttrium aluminum garnet (YAG) laser 

capsulotomy for the left eye. 

On December 18, 2014 OWCP expanded acceptance of the claim to include a right ocular 

cataract.5

 

3 Docket No. 11-0527 (issued April 9, 2012).

4 As the issue on appeal pertains only to appellant’s right eye, the Board will limit its discussion of the evidence to 

the relevant medical evidence of record.

5 OWCP initially denied the claim by April 4, 2014 decision as causal relationship was not established. Pursuant 

to counsel’s April 8, 2014 request for a telephonic hearing before an OWCP hearing representative, OWCP’s hearing 

representative issued a September 25, 2014 decision which remanded the claim for additional development. 

Following additional development, OWCP expanded the claim to accept a right cataract on December 18, 2014. 
3

On March 20, 2015 appellant claimed a schedule award (Form CA-7) for permanent visual 

impairment caused by the accepted right cataract.

In support of her claim, appellant submitted an August 8, 2015 report from Dr. Neal Eylar, 

an attending optometrist. On examination, Dr. Eylar found unaided distance acuities of 20/30 in 

both eyes, and binocular unaided distance acuity of 20/25. He found near unaided acuities of 

20/100 in both eyes and with both eyes at a 16 centimeter (cm) viewing distance. With corrective 

lenses, appellant attained 20/20 vision in each eye. He opined that according to the sixth edition 

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

(hereinafter, A.M.A., Guides),

6 Table 12-2,7

appellant had a visual acuity score (VAS) of 90 for 

the left eye, 90 for the right eye, and 95 binocularly. Dr. Eylar referred to Table 12-3

8

to calculate 

the functional acuity score (FAS). He multiplied the right eye VAS, or 90, by one, to equal 90.

Dr. Eylar then multiplied the left eye VAS, also 90, by one to equal 90. The binocular VAS was 

multiplied by 3 to equal 285. Dr. Eylar then added the sum of each VAS (90 + 90 + 285) to equal 

465, which was divided by 5 to attain the final FAS of 93. The FAS of 93 was then subtracted 

from 100 to result in seven percent permanent impairment of the right eye. Utilizing Table 12-

11,9 Dr. Eylar found a reading impairment score of 35 based on the right eye, left eye, and 

binocular measurements at 16 cm. He explained that the discrepancy between appellant’s distance 

impairment of 7 and near impairment of 35 was attributable to a loss of near-focus ability that 

occurred after cataract surgery. Based on these calculations, Dr. Eylar found 7 percent permanent 

impairment rating of the right eye at a distance and a near impairment rating of 35 percent due to 

the posterior subscapular polar cataract. He noted that these ratings were considered permanent. 

In an April 21, 2016 report, an OWCP medical adviser reviewed the medical record. He 

opined that appellant had a zero percent loss of vision as she had no measurable visual impairment. 

The medical adviser noted that vision testing confirmed that appellant had 20/20 corrected near 

vision in both eyes. He explained that, according to the A.M.A., Guides, all acuity measurements 

must be based on the best corrected vision values. Instead, Dr. Eylar had incorrectly based his 

impairment rating on appellant’s uncorrected vision.

By decision dated April 25, 2016, OWCP denied appellant’s schedule award claim as the 

measurements obtained by Dr. Eylar, as reviewed by OWCP’s medical adviser, demonstrated that 

appellant had no loss of vision. Therefore, appellant had no ratable impairment of the right eye 

due to the accepted right cataract.

Pursuant to counsel’s request for a telephonic hearing before an OWCP hearing 

representative, by decision dated November 30, 2016, an OWCP hearing representative found that 

the case was not in posture for decision. The hearing representative found that although the 

 

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

7 Table 12-2, page 288 of the sixth edition of the A.M.A., Guides is titled “Impairment of Visual Acuity.”

8 Table 12-3, page 289 of the sixth edition of the A.M.A., Guides is titled “Calculation of the Acuity-Related 

Impairment Rating.” 

9 Table 12-11, page 310 of the sixth edition of the A.M.A., Guides is titled “Determination of Reading Acuity and 

Impairment Rating, Using Letter Size and Viewing Distance.”
4

A.M.A., Guides provided that impairment ratings were to be based on best corrected visual acuity, 

section 8107(c)(19) of FECA10 provided that the degree of vision loss was to be determined 

without regard to correction. The hearing representative remanded the claim for referral to 

OWCP’s medical adviser to obtain the appropriate percentage of permanent impairment based on 

appellant’s uncorrected vision. OWCP was then to issue a de novo decision.

On remand of the case, an OWCP medical adviser submitted a December 23, 2016 report 

assessing seven percent permanent impairment of the right eye. He affirmed Dr. Eylar’s 

methodology and calculations. The medical adviser also noted that appellant had attained 

maximum medical improvement.

By decision dated December 28, 2016, OWCP granted appellant a schedule award for 

seven percent permanent impairment of the right eye. The period of the award ran from 

October 28, 2013 to January 14, 2014. Although the decision acknowledged that appellant had a 

reading impairment score of 35, it noted erroneously that the impairment rating was based on a 

“best” corrected vision score. 

In a January 6, 2017 letter, appellant, through counsel, requested a telephonic hearing 

before a representative of OWCP’s Branch of Hearings and Review, held June 22, 2017. At the 

hearing, counsel argued that appellant sustained 100 percent permanent impairment of the right

eye, as the posterior chamber intraocular lens Dr. Cavanaugh implanted during the March 27, 2013 

surgery constituted a corrective device. Counsel contended that in the absence of the artificial lens 

implant, appellant would have 100 percent permanent impairment of the right eye. Following the 

hearing, he submitted medical literature indicating that cataract removal surgery entailed replacing 

the natural lens with an artificial lens implant. 

By decision dated August 1, 2017, an OWCP hearing representative affirmed the 

December 28, 2016 decision, finding that OWCP’s medical adviser properly applied the 

appropriate portions of the A.M.A., Guides to the visual acuity measurements obtained by

Dr. Eylar.

LEGAL PRECEDENT

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

impairment of a scheduled member or function as a result of any employment injury.11

The schedule award provision of FECA12 and its implementing federal regulations13 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 

 

10 5 U.S.C. § 8107(19).

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

12 5 U.S.C. § 8107.

13 20 C.F.R. § 10.404.
5

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.14 For decisions issued 

after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.15

Section 8107(c)(19) of FECA provides that “[t]he degree of loss of vision or hearing under 

this schedule is determined without regard to correction.”

16

 The sixth edition of the A.M.A., 

Guides indicates that the evaluation of visual impairment is based on the functional vision score 

(FVS), which is the combination of an assessment of visual acuity, the ability of the eye to perceive 

details, necessary for activities such as reading and an assessment of visual field, the ability of the 

eye to detect objects in the periphery of the visual environment, which relates to orientation and 

mobility.17 The A.M.A., Guides also allows for individual adjustments for other functional 

deficits, such as contrast and glare sensitivity, color vision defects and binocularity, stereopsis, 

suppression and diplopia, only if these deficits are not reflected in a visual acuity or visual field 

loss.18 The A.M.A., Guides, however, specifically limits adjustment of the impairment rating for 

these deficits to cases which are well documented and provides, “The adjustment should be limited 

to an increase in the impairment rating of the visual system (reduction of the FVS) by, at most, 15 

points.”

19

ANALYSIS

OWCP accepted that appellant sustained a right cataract caused by corticosteroid injections 

used to treat accepted bilateral carpal tunnel syndrome. Appellant claimed a schedule award on 

March 20, 2015. 

The Board finds that appellant has not established more than seven percent permanent 

impairment of the right eye. 

In support of her claim, appellant provided an August 8, 2015 report from Dr. Eylar, an 

attending optometrist, who found seven percent permanent impairment of the right eye, based upon 

her uncorrected vision. Dr. Eylar provided detailed measurements from his clinical examination, 

and applied Table 12-2, Table 12-3, and Table 12-11 of the A.M.A., Guides to find a VAS of 90 

for the left eye, 90 for the right eye, and 95 binocularly. To obtain the FAS, he multiplied the right 

eye VAS of 90, by one, to equal 90, multiplied the left eye VAS of 90 by one to equal 90. Dr. Eylar 

multiplied the binocular VAS by 3 to equal 285. He then added the sum of each VAS (90 + 90 + 

 

14 Id. at § 10.404(a).

15 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).

16 5 U.S.C. § 8107(c)(19).

17 Supra note 6 at 282, 285.

18 Id. at 305.

19 Id.
6

285) to equal 465, which was divided by 5 to attain the final FAS of 93. Subtracting the FAS of 

93 from 100 resulted in 7 percent permanent impairment of the right eye. 

An OWCP medical adviser affirmed Dr. Eylar’s calculations on December 23, 2016. 

OWCP then issued a December 28, 2016 schedule award for seven percent permanent impairment 

of the right eye, based on OWCP’s medical adviser’s review of Dr. Eylar’s findings and 

calculations. Following a June 22, 2017 telephonic hearing, an OWCP hearing representative 

affirmed the schedule award by decision issued August 1, 2017.

The Board finds that Dr. Eylar applied the proper tables and grading schemes to his detailed 

clinical findings in his calculation of the schedule award. OWCP’s medical adviser affirmed

Dr. Eylar’s methodology and mathematical calculations. The December 28, 2016 schedule award 

for seven percent permanent impairment of the right eye is therefore appropriate under the 

circumstances of this case.

On appeal counsel asserts that appellant had a complete loss of vision in the affected eye, 

based on “AG.” As counsel did not provide a more detailed citation of authority, the Board cannot 

ascertain the matter to which he refers, nor the argument he intended to make. 

Appellant may request a schedule award or increased schedule award at any time 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 established more than seven percent permanent 

impairment of the right eye, for which she previously received a schedule award.
7

ORDER

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

Programs dated August 1, 2017 is affirmed.

Issued: March 20, 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