United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Edinburg, TX, Employer

__________________________________________

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Docket No. 18-0285

Issued: September 26, 2019

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 27, 2017 appellant, through counsel, filed a timely appeal from a 

November 3, 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 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 has met his burden of proof to establish more than 15 percent 

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

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

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

below. 

On February 27, 2013 appellant, then a 40-year-old supervisory border patrol agent, filed 

a traumatic injury claim (Form CA-1) alleging a left eye injury after a tree branch struck him when 

tracking through a wooded area while in the performance of duty. OWCP accepted his condition 

for superficial injury of the left cornea and central opacity of the left cornea. Appellant did not 

stop work.

On August 7, 2013 Dr. John D. Goosey, a Board-certified ophthalmologist, performed a 

lamellar keratoplasty of the left eye and diagnosed central corneal scar of the left eye. 

On November 13, 2014 appellant filed a claim for a schedule award (Form CA-7). 

On February 24, 2015 OWCP referred appellant for a second opinion to Dr. Thomas P. 

Dowhan, a Board-certified ophthalmologist, for a determination of whether appellant had 

permanent impairment attributable to his accepted conditions. In a report dated April 20, 2015,

Dr. Dowhan noted a history of appellant’s work-related condition and subsequent treatment. He 

indicated that appellant was struck in the left eye by a tree branch while working. Dr. Dowhan

noted the injury left appellant with a superficial scar causing visual impairment. He advised that 

appellant underwent lamellar keratoplasty to correct the condition and restore vision. Appellant 

reported a significant decrease in vision in the left eye and photophobia on days when the sun was

bright. Dr. Dowhan indicated that maximum medical improvement (MMI) occurred on 

August 7, 2013. He noted physical findings of corrected visual acuities of 20/20 oculus dexter 

(OD) and 20/600 oculus sinister (OS); intraocular pressures were 17 oculus uterque (OU); pupils 

were equal, round, and reactive to light OU; ocular motility was normal; slit lamp examination 

revealed the anterior segment OD to be normal; the slit lamp examination OS showed multiple 

punctuate epithelial and subepithelial spots scattered across the central corneal graph region; there 

was some general depression of the field OS without significant loss in any quadrant; and overall 

the field was generally normal. Dr. Dowhan noted that following surgery appellant showed signs 

of graft rejection, but after medical management his condition stabilized. He diagnosed corneal 

scar and central opacities. Dr. Dowhan indicated that he had no records predating the injury, but

based on a history from appellant he had uncorrected visual acuities of 20/20 in each eye following

a Lasik procedure 10 years prior to the left eye injury. He opined that pursuant to the sixth edition 

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

 

3 Docket No. 17-0038 (issued June 8, 2017).
3

(A.M.A., Guides),

4 Table 12-25

and Table 12-3,6Impairment of Visual Acuity, appellant had 75 

percent impairment of the left eye. The impairment rating for the right eye was zero. Dr. Dowhan 

further opined that the acuity-related impairment rating for both eyes was 15. 

In a September 30, 2015 report, Dr. David I. Krohn, Board-certified in internal medicine 

and serving as a district medical adviser (DMA), indicated that Dr. Dowhan failed to provide letter

chart acuity specifically for binocular vision. He requested that Dr. Dowhan provide a visual 

acuity score (VAS) so that acuity-related impairment could be accurately rated. 

On October 5, 2015 OWCP requested that Dr. Dowhan provide a VAS for both eyes. On 

November 19, 2015 Dr. Dowhan noted that the best corrected acuities OU was 20/20, OD was 

20/20, and OS was 20/600. Dr. Dowhan opined that, pursuant to the A.M.A., Guides, Table 12-2 

and Table 12-3, the functional acuity score (FAS) was 85. He diagnosed visual loss of left eye 

due to corneal opacity. Dr. Dowhan calculated 15 percent permanent visual impairment.

In a January 18, 2016 report, the DMA noted that lamellar keratoplasty was performed to 

the left eye on August 7, 2013 and postoperatively a low level rejection of the corneal graft was 

documented. He agreed with Dr. Dowhan’s impairment rating determination of 15 percent visual 

impairment of the left eye. The DMA applied Table 12-2 and Table 12-3 of the A.M.A., Guides

to find a VAS of 25 for the left eye, 100 for the right eye, and 100 binocularly. To obtain the FAS, 

he multiplied the right eye VAS of 100, by 1 to equal 100, he multiplied the left eye VAS of 25 by 

1 to equal 25. The DMA multiplied the binocular VAS of 100 by 3 to equal 300. He then added 

the sum of each VAS (100 + 25 + 300) to equal 425, which was divided by 5 to attain the final 

FAS of 85. Subtracting the FAS of 85 from 100 resulted in 15 percent permanent impairment of 

the left eye pursuant to page 289 of the A.M.A., Guides. The DMA opined that MMI occurred on 

May 2, 2014, the date the condition of graft rejection of the left eye stabilized.

By decision dated February 10, 2016, OWCP granted appellant a schedule award for 15 

percent permanent impairment of the left eye. The period of the award ran for a period of 24 weeks 

from May 2 to October 16, 2014. 

Appellant submitted a March 9, 2016 report from Dr. Dowhan who treated him for left eye 

pain, sticky left eye, and headaches from blurred vision which was worse over the preceding week. 

Dr. Dowhan diagnosed pain in the left eye, foreign body in cornea of left eye, blurred vision, 

history of cornea transplant, history of photophobia of the left eye, and cornea edema. He noted 

removing the exposed part of a suture.

On August 9, 2016 appellant, through counsel, requested reconsideration. Counsel

submitted a report from Dr. Ronald H. Krasney, a Board-certified ophthalmologist, and noted that 

based on this new evidence an increased schedule award was warranted. In his July 5, 2016 report,

Dr. Krasney noted a history of appellant’s injury and medical treatment. He noted that appellant 

experienced a difficult postoperative course with early signs of graft rejection which explained his 

 

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

5 Table 12-2, page 288 of the A.M.A., Guides is titled Impairment of Visual Acuity. 

6 Table 12-3, page 289 of the A.M.A., Guides is titled Calculation of the Acuity-Related Impairment Rating. 
4

persistent photophobic symptoms and persistent corneal opacities. Dr. Krasney referenced the 

DMA’s note which considered permanent impairment based on visual acuity in both eyes. He 

advised, however, that this rating method was insufficient to rate the impairment in the left eye 

which includes loss of stereopsis. Dr. Krasney indicated that his “own personal comment on this

matter is how anyone would feel if they had two of something and now only had one that is 

functioning.” He further noted that, “to most anyone, this would be at least 50 percent loss and if 

it were one’s own personal situation this loss might be considered even more severe.”

By decision dated September 23, 2016, OWCP denied appellant’s request for 

reconsideration finding that the evidence submitted was insufficient to warrant a merit review. 

Appellant, through counsel, appealed to the Board on October 17, 2016. By decision dated 

June 8, 2017, the Board set aside the September 23, 2016 decision finding that OWCP had 

improperly denied appellant’s request for reconsideration of the merits of his claim pursuant to 5 

U.S.C. § 8128(a).7 The Board remanded the case for OWCP to perform any further development 

deemed necessary, complete a merit review, and issue an appropriate decision on his claim. 

Appellant submitted additional reports from Dr. Dowhan dated March 27 to July 17, 2017. 

In these report’s Dr. Dowhan diagnosed epidemic keratoconjunctivitis of the left eye improving, 

pain of left eye improving, corneal epithelial defect improving, foreign body in cornea of left eye, 

sequela improving, blurred vision left eye stable, history of cornea transplant stable, and cornea 

edema stable. He removed sutures and prescribed a prednisone taper. 

In an undated report received by OWCP on August 29, 2017, Dr. Dowhan noted 

appellant’s history of injury and indicated that at appellant’s last visit his uncorrected visual 

acuities was 20/25 in the right eye and he was legally blind in the left eye with visual acuities of 

20/600. Appellant reported continued symptoms of chronic pain of the left eye and photophobia. 

Dr. Dowhan opined that pursuant to the A.M.A., Guides his impairment using the FAS showed

that appellant had 15 percent visual impairment, but he advised that a FAS did not address the fact 

that appellant had no depth perception. He noted that appellant would score zero on the steropsis 

test and he has diminished visual field in the left eye and this was not reflected in the FAS. 

Dr. Dowhan noted that to address appellant’s actual disability he believed that account should be 

taken of the specific requirement of an individual’s job. He noted that appellant’s job as a border 

patrol agent was significantly compromised because of the loss of the left eye and made it unsafe 

for him to continue in his present job given his functional disability and disability with respect to 

the physical demands of his job.

By decision dated November 3, 2017, OWCP performed a merit review and denied 

modification of the February 10, 2016 decision.

 

7 Supra note 3.
5

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 of the body as a result of any employment injury.8

The schedule award provisions of FECA9and its implementing regulations10 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 

loss or loss of use of scheduled members, organs, or functions of the body.11 For 100 percent loss 

of an eye, as with blindness, FECA provides a maximum 160 weeks of compensation.12 A loss of 

80 percent or more of the vision of an eye is considered the same as loss of the eye.13 Partial losses 

are compensated proportionately.14

Such loss or loss of use is known as permanent impairment. OWCP evaluates the degree 

of permanent impairment according to the standards set forth in the specified edition of the 

A.M.A., Guides. For decisions issued after May 1, 2009, the sixth edition is used to calculate 

schedule awards.15

Although the A.M.A., Guides provides that impairment ratings should be based on the bestcorrected visual acuity,16 FECA mandates that the degree of loss of vision must be determined 

without regard to correction.17

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.18 The A.M.A., Guides also allows for 

individual adjustments for other functional deficits, such as contrast and glare sensitivity, color 

 

8 See T.O., Docket No. 18-0659 (issued August 8, 2019); Tammy L. Meehan, 53 ECAB 229 (2001). 

9 5 U.S.C. § 8107.

10 20 C.F.R. § 10.404.

11 Supra note 11.

12 Id. at § 8107(c)(5).

13 Id. at § 8107(c)(14).

14 Id. at § 8107(c)(19).

15 See 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 (March 2017).

16 A.M.A., Guides 287, Chapter 12.2c.

17 5 U.S.C. § 8107(c)(19).

18 A.M.A., Guides (6th ed. 2009) at 282, 285.
6

vision defects and binocularity, stereopsis, suppression and diplopia, only if these deficits are not 

reflected in a visual acuity or visual field loss.19 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.”

20

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish more than 15 

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

Following remand to OWCP appellant submitted additional medical evidence. In an 

undated report received on August 29, 2017, Dr. Dowhan indicated that at appellant’s last visit his 

uncorrected visual acuities was 20/25 in the right eye and 20/600 in the left eye. He indicated that 

appellant was legally blind in the left eye and opined that pursuant to the A.M.A., Guides his 

impairment using the FAS showed that appellant had 15 percent visual impairment. However,

Dr. Dowhan advised that a FAS did not address the fact that appellant had no depth perception. 

He noted that appellant would score zero on the steropsis test with diminished visual field in the

left eye which was not reflected in the FAS. Dr. Dowhan noted that to address appellant’s actual 

disability he believed that you had to take into account specific requirements of appellant’s job as 

a border patrol agent. He opined that appellant was significantly compromised because of the loss 

of the left eye and made it unsafe for him to continue in his present job given his functional 

disability. However, the Board finds that, while Dr. Dowhan reported a left eye impairment and 

the impact on appellant’s ability to perform the duties of his employment, he did not provide a 

rating of impairment in accordance with the standards adopted by OWCP and approved by the 

Board for evaluating schedule losses. Although the A.M.A., Guides allows for individual 

adjustments for other functional deficits such as stereopsis, it is only in cases where the deficits 

are not reflected in a visual acuity or visual field loss21 and is limited to cases which were well 

documented. The relevant standards of the A.M.A., Guides do not take into account specific 

requirements of a claimant’s job description in rating impairment as proposed by Dr. Dowhan.

22

 

This interpretation of the A.M.A., Guides is inconsistent with the standards adopted by OWCP. 

The Board finds that there is no medical evidence of record, which conforms to the A.M.A., 

Guides, which establishes that appellant has more than 15 percent permanent impairment of the 

left eye. The Board therefore finds that appellant has not met his burden of proof to establish his 

claim for an increased schedule award.

 

19 Id. at 305. 

20 Id.

21 Id.

22 See Tonya R. Bell, 43 ECAB 845, 849 (1992).
7

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 met his burden of proof to establish more than 15

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

ORDER

IT IS HEREBY ORDERED THAT the November 3, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 26, 2019

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