United States Department of Labor

Employees’ Compensation Appeals Board

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J.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS AND BORDER PROTECTION, 

SOUTHWEST LAREDO SECTOR, Laredo, TX, 

Employer

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Docket No. 23-0657

Issued: January 17, 2024

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On April 6, 2023 appellant filed a timely appeal from a March 6, 2023 merit decision of 

the Office of Workers’Compensation Programs (OWCP).1 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 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argumentmay be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In support 

of appellant’s oral argument request, he asserted that oral argument should be granted because his current claim for a 

schedule award of his right anterior cruciate ligament (ACL) tear is a different injury on the same knee and should not 

be related to his 2019 claim in which he tore his right knee medial meniscus and was awarded five percent permanent 

impairment. The Board, in exercising its discretion, denies appellant’s request for oral argument because the 

arguments on appeal can adequately be addressed in a decision based on a review of the case record. Oral argument 

in this appeal would further delay issuance of a Board decision and not serve a useful purpose. As such, the oral 

argument request is denied, and this decision is based on the case record as submitted to the Board.

2

5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish greater than eight 

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

schedule award compensation.

FACTUAL HISTORY

On August 15, 2021 appellant, then a 40-year-old border patrol agent, filed a traumatic 

injury claim (Form CA-1) alleging that on that day he sustained right ankle, right foot, and right 

knee injuries when he tried to climb through a hole in a fence while tracking a group that had 

scattered in the performance of duty. He explained that when he stood up from a squatting position, 

his belt and right foot caught on the fence and his right knee and right ankle/foot “popped.” 

Appellant stopped work on September 3, 2021. OWCP assigned that claim OWCP File No. 

xxxxxx839.3 It accepted the claim for other tear of right knee medial meniscus, sprain of right 

knee medial collateral ligament, sprain of right knee posterior cruciate ligament, right knee 

effusion, and strain of right quadriceps muscle, fascia and tendon. Appellant returned to full-time 

modified-duty work with restrictions on November 3, 2021. He underwent OWCP-authorized

right knee anterior cruciate ligament (ACL) repair and augmentation on November 16, 2021. 

OWCP paid appellant appropriate compensation benefits. Appellant returned to full-duty work on 

January 14, 2022. 

In a March 17, 2022 report, Dr. Stephen Josh Bell, a Board-certified orthopedic surgeon, 

noted the history of appellant’s August 2021 employment injury and his priorright knee injury that 

required surgery in 2019. He also reported appellant’s physical examination findings, including 

full range of motion (ROM) of the right knee. Dr. Bell determined that appellant had reached 

maximum medical improvement (MMI) on February 25, 2022, when he was released from clinical 

treatment. Under the diagnosis-based impairment (DBI) methodology of the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides),4 he determined that appellant had eight percent permanent impairment of his right lower 

3 Appellant has prior claims. In OWCP File No. xxxxxx001, OWCP accepted his September 23, 2011 traumatic 

injury for effusion of joint, left upper arm. In OWCP File No. xxxxxx729, it accepted appellant’s March9, 2019 

traumatic injury for sprain of other ligaments of left ankle, bucket handle tear of medial meniscus right knee, other 

tear of medial meniscus right knee, contusion of right knee, strain of muscle, fascia tendon at right thigh, and tibial 

collateral bursitis of right leg. On June 20, 2019 appellant underwent OWCP-authorized arthroscopy with anterior 

horn medial meniscus and debridement with medial femoral condyle chondroplasty. By decision dated August18, 

2020, OWCP granted hima schedule award for 3 percent permanent impairment of the right lower extremity and an 

additional 2 percent permanent impairment of the left lower extremity, noting that he was previously awarded 17 

percent left lower extremity permanent impairment, for a total 19 percent left lower extremity permanent impairment. 

By decision dated March 25, 2021, it modified its August 18, 2020 decision to reflect an additional two percent right 

lower extremity permanent impairment for a total five percent right lower extremity permanent impairment. The 

Board, in a May 5, 2022decision, set aside the August 18, 2020 decision and remanded the case to OWCPfor further 

development as to whether appellant had greater than five percent permanent impairment of the right lower extremity. 

Docket No. 21-1215 (issued May 5, 2022). In a September 28, 2022 decision, OWCP again found that appellant had

an additional two percent permanent impairment of the right lower extremity for a total five percent right lower 

extremity permanent impairment.

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

extremity. Dr. Bell found that a class of diagnosis (CDX) for the accepted ACL tear under Table 

16-3, page 509 was a Class 0 or zero percent impairment status post ACL repair with no laxity 

and/or instability. He further found that a CDX for primary knee joint arthritis with full-thickness 

medial femoral condyle articular cartilage defect, status post microfracture drilling under the same 

table was a Class 1 impairment, grade C or seven percent impairment. Dr. Bell assigned a grade 

modifier for functional history (GMFH) of 0; a grade modifier for physical examination (GMPE) 

of 2; and a grade modifier for clinical studies (GMCS) of 2. He applied the net adjustment formula 

(GMFH - CDX) (0-1) + (GMPE - CDX) (2-1) + (GMCS - CDX) (2-1) = +1 net adjustment, which 

resulted in a Class 1 impairment, grade C or seven percent permanent impairment of the right 

lower extremity. Dr. Bell moved the Class 1 impairment, grade C, seven percent impairment, to a 

grade D or eight percent permanent impairment of the right lower extremity. Under the ROM 

impairment methodology, Dr. Bell determined that appellant had zero percent impairment of the 

right lower extremity due to full ROM of the right knee. 

On April 10, 2022 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. 

On July 26, 2022 OWCP referred the case record and a statement of accepted facts (SOAF) 

to Dr. Nathan Hammel, a Board-certified orthopedic surgeon serving as an OWCP district medical 

adviser (DMA). 

In an August 5, 2022 report, Dr. Hammel noted his review ofthe SOAF and medical record, 

including Dr. Bell’s March 17, 2022 report. He concurred with Dr. Bell’s finding that appellant 

had eight percent permanent impairment of the right lower extremity based on the DBI rating 

method. Dr. Hammel also concurred with his zero percent right lower extremity permanent 

impairment finding based on the ROM methodology. He determined that appellant had attained 

MMI on March 17, 2022. Dr. Hammel noted that he was not aware of any prior impairment 

awards for the right lower extremity. 

On September 13, 2022 OWCP advised Dr. Hammel that it had failed to inform him that 

appellant previously received a schedule award for five percent permanent impairment of the right 

lower extremity. It requested that he provide a supplemental report addressing whether the

percentage of impairment provided included the prior percentage awarded or if it should be 

considered an addition to the prior award. 

In a September 27, 2022 report, Dr. Hammel reiterated his prior opinion that appellant had 

eight percent permanent impairment of the right lower extremity in accordance with the DBI rating 

method and that appellant had zero percent right lower extremity permanent impairment based on 

the ROM rating method. He noted that appellant was previously awarded five percent permanent 

impairment of the right lower extremity. Dr. Hammel, thus opined that he was entitled to an 

additional three percent permanent impairment of the right lower extremity for a total eight percent 

right lower extremity permanent impairment.

By decision dated December 14, 2022, OWCP granted appellant schedule award 

compensation for an additional three percent permanent impairment of the right lower extremity

(right leg), for a total eight percent permanent impairment of the right lower extremity based on 
4

the opinions of Dr. Bell and Dr. Hammel. The period of the award ran for eight weeks and a 

fraction of a week for the period March 17 to May 16, 2022.

On December 16, 2022 and February 9, 2023 appellant requested reconsideration. In the 

December 16, 2022 request for reconsideration, he alleged that his premium pay under the Border 

Patrol Agent Reform Act was not included in the schedule award. In support of the February 9, 

2023 request, appellant submitted an undated letter in which he contended that he had eight percent 

permanent impairment of the right lower extremity rather than three percent permanent impairment 

as found by Dr. Hammel without explanation. He asserted that his prior right knee injuries in

OWCP File Nos. xxxxxx729 and xxxxxx001 were separate and unrelated to his current right knee 

injury in OWCP File No. xxxxxx839. 

On February 21, 2023 OWCP requested Dr. Hammel review the letter accompanying 

appellant’s February 9, 2023 request for reconsideration and provide an addendum report 

justifying his additional three percent right lower extremity permanent impairment rating set forth 

in his September 27, 2022 report. 

In a March 3, 2023 report, Dr. Hammel continued to opine that appellant had an additional 

three percent permanent impairment of the right lower extremity for a total of eight percent right 

lower extremity permanent impairment. He also reiterated that appellant had reached MMI on 

March 17, 2022. In response to appellant’s contention that he had multiple separate right knee 

injuries, Dr. Hammel explained that based on the sixth edition of the A.M.A., Guides if there are 

multiple diagnoses for the same body part, then the most impairing diagnosis was rated and if that 

impairment rating was higher than a previous schedule award, then the previous award must be 

discarded.

By decision dated March 6, 2023, OWCP denied modification of its December 14, 2022 

decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA5 and its implementing regulations6 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 to all claimants, good administrative practice necessitates the 

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

Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.7 As of May 1, 2009, schedule awards are determined in 

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id.;see S.C.,Docket No. 22-0922 (issued January 12, 2021);see also RonaldR. Kraynak, 53 ECAB 130 (2001).
5

accordance with the sixth edition of the A.M.A., Guides (2009).8 The Board has approved the use 

by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a 

member of the body for schedule award purposes.9

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the 

World Health Organization’s International Classification of Functioning, Disability and Health 

(ICF): A Contemporary Model of Disablement.

10

 In determining impairment for the lower 

extremities under the sixth edition of the A.M.A., Guides, an evaluator must establish the 

appropriate diagnosis for each part of the lower extremity to be rated. With respect to the 

foot/ankle and knee, reference is made to Table 16-2 through Table 16-4 beginning on page 501.11 

After the CDX is determined from each of these tables (including identification of a default grade 

value), the net adjustment formula is applied using GMFH, GMPE, and GMCS. The net 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 Under Chapter 2.3, 

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

of diagnoses from regional grids and calculations of modifier scores. 13

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

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

of impairment in accordance with the A.M.A., Guides,with the medical adviser providing rationale 

for the percentage of impairment specified.14

ANALYSIS

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

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

schedule award compensation.

On April 10, 2022 appellant filed a claim for a schedule award under the present claim. He 

submitted a March 17, 2022 report by Dr. Bell. Dr. Bell reported his physical examination 

findings, including full ROM of the right knee. Utilizing the DBI rating method of the sixth edition 

of the A.M.A., Guides, Table 16-3, page 510 of the A.M.A., Guides, for cruciate or collateral 

ligament injury, he identified a CDX for the accepted ACL tear as Class 0 or zero percent 

impairment status post ACL repair with no laxity and/or instability. He also identified a CDX for

8

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

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

Chapter 2.808.5a (March 2017).

9 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10 A.M.A., Guides, page 3, section 1.3.

11 See A.M.A., Guides 501-11 (6th ed. 2009).

12 Id. at 515-22.

13 Id. at 23-8.

14 See Federal (FECA) Procedure Manual, supranote 8;see K.R.,Docket No. 21-0247 (issued February 25, 2022);

D.J., Docket No. 19-0352 (issued July 24, 2020).
6

primary knee joint arthritis with full-thickness medial femoral condyle articular cartilage defect, 

status post microfracture drilling as a Class 1 impairment, grade C or seven percent default value. 

Dr. Bell assigned a GMFH of 0; a GMPE of 2; and a GMCS of 2. Utilizing the net adjustment 

formula, he found a net adjustment of 1 and eight percent permanent impairment of the right lower 

extremity. Dr. Bell also applied the ROM rating method and determined that appellant had zero 

percent impairment of the right lower extremity due to full ROM of the right knee. 

In reports dated August 5 and September 27, 2022, and March 23, 2023, Dr. Hammel, the 

DMA, reviewed and concurred with Dr. Bell’s DBI and ROM ratings. He also properly explained 

that based on the sixth edition of the A.M.A., Guides if there are multiple diagnoses for the same 

body part, then the most impairing diagnosis should be rated, because it is probable this will 

incorporate the functional losses of the less impairing diagnoses. 15

The Board finds that the well-rationalized reports of Dr. Bell and Dr. Hammel provide an 

opinion on appellant’s right lower extremity permanent impairment which were derived in 

accordance with the standards of the sixth edition of the A.M.A., Guides and therefore are entitled 

to the weight of the evidence.16 Their calculations, including the derivation of grade modifiers and 

the application of the net adjustment formula, properly applied the relevant standards to the 

physical examination and diagnostic testing results.

As there is no rationalized medical report providing a rating of permanent impairment 

greater than that provided by Dr. Bell and Dr. Hammel, the Board finds that appellant had not met 

his burden of proof to establish greater than eight percent permanent impairment of his right lower 

extremity, for which he received a schedule award.17

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 permanent impairment.

CONCLUSION

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

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

schedule award compensation.18

15 I.S., Docket No. 22-0922 (issued November 21, 2022); see A.M.A., Guides 529 (6th ed. 2009).

16 See N.B., Docket No. 22-1295 (issued May 25, 2023); Y.S., Docket No. 19-0218 (issued May 15, 2020); R.D., 

Docket No. 17-0334 (issued June 19, 2018).

17 N.B., id.; M.G., Docket No. 19-0823 (issued September 17, 2019); I.T., Docket No. 18-1049 (issued 

December 31, 2018).

18 The Board notes that OWCP has not issued a final decision regarding appellant’s December 16, 2022 

reconsideration request regarding his pay rate. See 20 C.F.R. § 501.2(c).
7

ORDER

IT IS HEREBY ORDERED THAT the March 6, 2023 decision of the Office of Workers’

Compensation Programs is affirmed. 

Issued: January 17, 2024

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board