E.G. and Department of Homeland Security, U.S. Customs and Border Protection (Board decision, January 31, 2025)

ECAB remand decision. In this reissued order, the Board set aside OWCP’s schedule award denial and remanded for combined-file review; further award entitlement remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A Border Patrol agent sought a schedule award after an accepted left shoulder and elbow injury. OWCP denied a new award because he had received an earlier award for the same upper extremity under another claim number. The Board found the record did not show whether the new impairment duplicated the earlier award. It directed OWCP to combine the two files and explain any overlap in a new decision.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Schedule award denial set aside; two claims to be reviewed together.
• Key point: OWCP had to determine whether the new rating duplicated the earlier award.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.G., Appellant
)
)
and ) Docket No. 25-0112
)
Issued: January 31, 2025
DEPARTMENT OF HOMELAND SECURITY, )
U.S. CUSTOMS AND BORDER PROTECTION, )
U.S. BORDER PATROL, CAMPO STATION, )
Pine Valley, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On November 14, 2024 appellant filed a timely appeal from an August 22, 2024 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 25-0112.

On February 22, 2023 appellant, then a 50-year-old border patrol agent, filed a traumatic injury claim (Form CA-1) alleging that on February 21, 2023 he sustained a left elbow radial head fracture when he tripped and fell on his knees and elbows while in the performance of duty. He stopped work on February 22, 2023. OWCP accepted the claim, assigned OWCP File No. xxxxxx675, for sprain of the left shoulder joint and displaced fracture of the head of the left radius.

OWCP previously accepted that appellant sustained a sprain of the back, left shoulder, and upper arm, and displacement of a lumbar disc without myelopathy on May 9, 2013, under OWCP File No. xxxxxx928.

On December 4, 2023 appellant filed a claim for compensation (Form CA-7) for a schedule award.

OWCP, on June 17, 2024, referred appellant, the case record, and a statement of accepted facts (SOAF) to Dr. Jon P. Kelly, a Board-certified orthopedic surgeon, for a second opinion examination regarding his left shoulder. In a report dated June 21, 2024, Dr. Kelly diagnosed preexisting supraspinatus tendinitis, partial bursal side tear, and left radial head fracture status post open reduction and internal fixation with incomplete recovery of motion. He found that appellant had four percent permanent impairment of the left upper extremity due to his loss of range of motion of his left shoulder using Table 15-34 of page 475 of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),1 and five percent permanent impairment of the left upper extremity due to loss of range of motion of the left elbow using Table 15-33 page 474 of the A.M.A., Guides.

On July 27, 2024 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as a district medical adviser (DMA), found that appellant had nine percent permanent impairment of the left upper extremity. He noted, however, that he had previously received a schedule award for 11 percent permanent impairment of the left upper extremity for a left shoulder condition, and therefore found that there had been no increase in appellant’s left upper extremity impairment.

By decision dated August 22, 2024, OWCP denied appellant’s schedule award claim, finding that the medical evidence did not establish a permanent impairment to a scheduled member or function of the body.

The Board, having duly considered this matter, finds that the case is not in posture for decision.

The Federal Employees’ Compensation Act2 (FECA) and its regulations provide for the reduction of compensation for subsequent injury to the same scheduled member. Specifically, benefits payable under section 8107(c) shall be reduced by the period of compensation paid or payable under the schedule for an earlier injury if: (1) compensation in both cases is for impairment of the same member or function or different parts of the same member or function; and (2) the latter impairment in whole or in part would duplicate the compensation payable for the preexisting impairment. 3 The Board has held that OWCP must adequately explain how the latter impairment duplicated the compensation the claimant previously received under a separate file number.4

In this case it remains unclear whether appellant’s permanent impairment of the left upper extremity found under the current claim, OWCP File No. xxxxxx675, duplicated the schedule award previously paid for 11 percent permanent impairment of the left upper extremity under OWCP File No. xxxxxx928. The case record before the Board is limited to OWCP File No. xxxxxx675. Pursuant to its procedures, OWCP has determined that cases should be combined

1
A.M.A., Guides 6 th ed (2009).
2
5 U.S.C. § 8101 et seq.
3
Id. at § 8108; 20 C.F.R. § 10.404(d); see also R.B., Docket No. 09-1786 (issued July 1, 2010).
4
Order Remanding Case, G.D., Docket No. 25-0085 (issued November 18, 2024); J.V., Docket No. 17-1766 (issued April 3, 2018); T.S., Docket No. 09-1308 (issued December 22, 2009).

2 when correct adjudication of the issues depends on frequent cross-reference between files. 5 In order to obtain sufficient clarification as to whether appellant’s recent rating would duplicate the prior schedule award, in whole or in part, his claims must be combined. 6

Therefore, for a full and fair adjudication, the case shall be remanded to OWCP to administratively combine the current case record, OWCP File No. xxxxxx675, with OWCP File No. xxxxxx928. Following this, and other such further development as deemed necessary, OWCP shall issue a de novo decision which explains whether appellant’s impairment rating duplicates the prior schedule award in whole or in part. Accordingly,

IT IS HEREBY ORDERED THAT the August 22, 2024 decision of the Office of Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings consistent with this order of the Board. 7

Issued: January 31, 2025
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

5
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c (February 2000).
6
Order Remanding Case, T.C., Docket No. 24-0418 (issued June 3, 2024); Order Remanding Case, R.B., Docket No. 13-792 (issued July 25, 2013).
7
James D. McGinley, Alternate Judge, participated in the preparation of this order, but was no longer a member of the Board effective January 12, 2025.

3